United States v. Webster ( 1999 )

  •                          Revised December 28, 1998
                               FOR THE FIFTH CIRCUIT
                                       No. 96-11224
                             UNITED STATES OF AMERICA,
                              BRUCE CARNEIL WEBSTER,
                                   a/k/a B-Love,
               Appeal from the United States District Court
                    for the Northern District of Texas
                                 December 3, 1998
    Before SMITH, DUHÉ, and WIENER, Circuit Judges.
    JERRY E. SMITH, Circuit Judge:
         Bruce Webster challenges his conviction of, and sentence for,
    kidnaping resulting in death, conspiring to kidnap, and using and
    carrying a firearm during a crime of violence.               We affirm.
         The   facts   are     the     same    as   in    the   case   of   Webster’s
    co-conspirator, Orlando Hall.         See United States v. Hall, 
    152 F.3d 381
     (5th Cir. 1998).        Webster, Hall, and Marvin Holloway ran a
    marihuana trafficking enterprise in Pine Bluff, Arkansas.               They
    purchased marihuana in varying amounts in the Dallas/Fort Worth
    area with the assistance of Steven Beckley, who lived in Irving,
    Texas.     The marihuana was transported, typically by Beckley, to
    Arkansas and stored in Holloway's house.
         On September 21, 1994, Holloway drove Hall from Pine Bluff to
    the airport in Little Rock, and Hall took a flight to Dallas to
    engage    in    a   drug   transaction.   Beckley   and   Hall's    brother,
    Demetrius Hall (D. Hall), picked up Hall at the airport.               Later
    that day, Hall and Beckley met two local drug dealers, Stanfield
    Vitalis and Neil Rene (N. Rene), at a car wash and gave them $4700
    for the purchase of marihuana.       Later that day, Beckley and D. Hall
    returned to the car wash to pick up the marihuana, but Vitalis and
    N. Rene never appeared.
         When Hall got in touch with Vitalis and N. Rene by telephone,
    they claimed they had been robbed of the $4700.                    Using the
    telephone number that Beckley had dialed to contact Vitalis and
    N. Rene, Hall procured an address at the Polo Run Apartments in
    Arlington, Texas, from a friend who worked for the telephone
    company.       Hall, D. Hall, and Beckley began conducting surveillance
    at the address and saw Vitalis and N. Rene exit an apartment and
    approach the same car they had driven to the car wash, which they
    claimed was stolen from them along with the $4700.         Hall therefore
    deduced that Vitalis and N. Rene had lied to him about having been
         On September 24, Hall contacted Holloway and had him drive
    Webster to the Little Rock airport.    From there, Webster flew to
    Dallas. That evening, Hall, D. Hall, Beckley, and Webster returned
    to the Polo Run Apartments in a Cadillac owned by Cassandra Ross,
    Hall's sister.   Hall and Webster were armed with handguns, D. Hall
    carried a small souvenir baseball bat, and Beckley had duct tape
    and a jug of gasoline.    They approached the apartment from which
    they had previously seen Vitalis and N. Rene leave.
         Webster and D. Hall went to the front door and knocked.   The
    occupant, Lisa Rene, N. Rene’s sixteen-year-old sister, refused to
    let them in and called her sister and the police emergency phone
    number.   After Webster unsuccessfully attempted to kick in the
    door, he and D. Hall looked through a sliding glass door on the
    patio and saw that Lisa Rene was on the telephone.         D. Hall
    shattered the door with the bat; Webster entered the apartment,
    tackled Lisa Rene, and dragged her to the car.
         Hall and Beckley had returned to the car when they heard the
    sound of breaking glass.       Webster forced Lisa Rene onto the
    floorboard of the car, and the group drove to Ross’s apartment in
    Irving.   Once there, they exited the Cadillac and forced Lisa Rene
    into the back seat of Beckley’s car; Hall climbed into the back
    seat as well.    With Beckley at the wheel and Webster in the front
    passenger seat, they drove around looking for a secluded spot.
    During the drive, Hall raped Lisa Rene and forced her to perform
    fellatio on him.
         Unable   to   find   a   spot   to    their   liking,   they   eventually
    returned to Ross’s apartment.         From there, Beckley, D. Hall, and
    Webster drove Lisa Rene to Pine Bluff.         Hall remained in Irving and
    flew back to Arkansas the next day.                En route to Pine Bluff,
    Webster and D. Hall took turns raping Lisa Rene.               Once Beckley,
    D. Hall and Webster reached Pine Bluff, they obtained money from
    Holloway to get a motel room.        In the room, they tied Lisa Rene to
    a chair and raped her repeatedly.
         Hall and Holloway arrived at the motel room on the morning of
    September 25.      They went into the bathroom with Lisa Rene for
    approximately fifteen to twenty minutes.             When Hall and Holloway
    came out of the bathroom, Hall told Beckley, "She know too much."
    Hall, Holloway, and Webster then left the motel.
         Later that afternoon, Webster and Hall went to Byrd Lake Park
    and dug a grave.     That same evening, Webster, Hall, and Beckley
    took Lisa Rene to the park but could not find the grave site in the
    dark, so they returned to the motel room.           In the early morning of
    September 26, Beckley and D. Hall moved Lisa Rene to another motel
    because they believed the security guard at the first motel was
    growing suspicious.
         The same morning, Webster, Hall, and Beckley again drove Lisa
    Rene to Byrd Lake Park.       They covered her eyes with a mask.         Hall
    and Webster led the way to the grave site, with Beckley guiding
    Lisa Rene by the shoulders.          At the grave site, Hall turned Lisa
    Rene’s back toward the grave, placed a sheet over her head, and hit
    her in the head with a shovel.       Lisa Rene screamed and started
    running.   Beckley grabbed her, and they both fell down.    Beckley
    hit her in the head twice with the shovel and handed it to Hall.
    Webster and Hall began taking turns hitting her with the shovel.
    Webster then gagged her and dragged her into the grave.          He
    stripped her, covered her with gasoline, and shoveled dirt back
    into the grave.    When buried, Lisa Rene, although unconscious,
    likely was still breathing.      Hall, Beckley, and Webster then
    returned to the motel and picked up D. Hall.
         Based on information from the victim’s brothers, D. Hall was
    arrested; Hall and Beckley subsequently surrendered to the police.
    On September 29, just after turning himself in, Beckley gave a
    confession to a police detective and an FBI agent in which he
    admitted to the kidnaping of Lisa Rene and implicated himself,
    Hall, and an individual known as “B-Love.”   Beckley stated that he
    had last seen Lisa Rene at the Pine Bluff Motel with B-Love.      A
    security guard at the motel informed the agents and officers that
    Webster went by the name B-Love, and provided a description of
    Webster and his vehicle.     When Webster pulled into the motel
    parking lot during the early morning of September 30, he was
    detained and subsequently arrested.
         In November 1994, a six-count superseding indictment charged
    Webster, Hall, D. Hall, Beckley, and Holloway with various offenses
    related to the kidnaping and murder of Lisa Rene.              Specifically,
    the indictment charged Webster with kidnaping in which a death
    occurred   in   violation    of   18   U.S.C.   §   1201(a)(1)   (count    1),
    conspiracy to commit kidnaping in violation of 18 U.S.C. § 1201(c)
    (count 2), traveling in interstate commerce with intent to promote
    extortion in violation of 18 U.S.C. § 1952 (count 5), and using and
    carrying a firearm during a crime of violence in violation of
    18 U.S.C. § 924(c) (count 6).          In February 1995, the government
    filed its notice of intent to seek the death penalty against
    Webster pursuant to § 3593(a) of the Federal Death Penalty Act of
    1994 (“FDPA”), 18 U.S.C. §§ 3591-3598.
          Webster’s trial was severed from that of his co-defendants.
    The jury returned a verdict of guilty on counts 1, 2 and 6, and
    count five was dismissed on the government’s motion.               The court
    conducted a separate sentencing hearing before the same jury.              See
    § 3593.      After the penalty phase, the jury returned special
    findings that Webster satisfied the requisite elements of intent,
    see § 3591(a), and that three statutory and two non-statutory
    aggravating factors existed.1          See § 3592.      Varying numbers of
            The jury unanimously found all but the first of the following statutory
    aggravating factors:
          II(A).      The defendant, Bruce Carneil Webster, caused the death
          of Lisa Rene, or injury resulting in death of Lisa Rene, which
          occurred during the commission of the offense of kidnapping.
          II(B).      The defendant . . . committed the offense in an
          especially heinous, cruel, or depraved manner in that it involved
          torture or serious physical abuse of Lisa Rene.
    jurors found nine mitigating factors.2             See § 3592.      The court
          II(C).      The defendant . . ., after substantial planning and
          premeditation, committed the offense of kidnapping in which the
          death of Lisa Rene resulted.
          II(D).      The victim, Lisa Rene, was particularly vulnerable due
          to her age.
    In addition, the jury unanimously found both of the proposed non-statutory
    aggravating factors:
          III(A).     The defendant . . . constitutes a future danger to the
          lives and safety of other persons.
          III(B).     The effect of the instant offense on Lisa Rene’s family.
            Webster proposed the following statutory mitigating factors (with the
    number of jurors finding each mitigating factor shown in brackets):
          1.    The defendant’s capacity to appreciate the wrongfulness of his
                conduct or to conform his conduct to the requirements of the
                law was significantly impaired. [0]
          2.    The defendant was under unusual and substantial duress. [0]
          3.    Another defendant or defendants, equally culpable in the
                crime, will not be punished by death. [4]
          4.    The defendant does not have a significant prior history of
                other criminal conduct. [0]
          5.    The defendant committed the offense under severe mental or
                emotional disturbance. [0]
          Webster proposed the following non-statutory mitigating factors (with the
    number of jurors finding each mitigating factor shown in brackets):
          1.    The defendant is or may be mentally retarded. [4]
          2.    The defendant has low intellectual functioning. [4]
          3.    The defendant suffered from physical abuse, from emotional
                abuse, and/or from parental neglect during his upbringing.
          4.    The defendant, as a result of a personality disorder, a mental
                illness, and/or low intellectual functioning, has a lesser
                capability to appreciate the wrongfulness of his conduct or to
                conform his conduct to the requirements of the law than that
                of a normal person. [0]
          5.    The defendant was youthful at the time of the commission of
    sentenced   Webster    to   death   on     count   one   of   the   superseding
    indictment; life imprisonment on count two; and sixty months'
    imprisonment on count six to run consecutively to the sentence in
    count 2.
         Webster raises several grounds for reversing his conviction
                the crime, although not under the age of eighteen. [0]
         6.     The defendant has talents, capabilities, or qualities which
                are of some value to society (such as musical talent,
                religious devotion, etc.). [0]
         7.     The defendant is unduly susceptible to influence by others. [0]
         8.     The defendant’s level of participation in the commission of
                this offense was attributable, at least in part, to the
                influence of one or more of the other participants involved in
                the commission of this crime. [4]
         9.     The defendant grew up in an atmosphere of violence and fear,
                which has misshaped his perception as to the acceptability or
                necessity of violent conduct. [6]
         10.    The defendant can be controlled in a prison setting. [2]
         11.    The defendant can be of some productive value in a prison
                setting. [0]
         12.    The defendant has the love and support of other members of his
                family. [11]
         13.    The defendant does not have a significant prior history of
                violent crime. [0]
         14.    The defendant is the product of an impoverished background
                which virtually precluded his integration into the social and
                economic mainstream of the community. [0]
         15.    The defendant has responded well to structured environments
                and would likely adapt to prison life if he were sentenced to
                life imprisonment. [2]
         16.    Any other factor or factors in the defendant’s background,
                record, or character or any other circumstance of the offense
                that mitigates against imposition of the death sentence. [0]
    and/or sentence that we already have ruled on in Hall:
          1.   The district court violated Webster’s Fifth and
          Eighth Amendment rights by conditioning the admission of
          psychiatric testimony in mitigation of punishment upon
          Webster’s submission to a government psychiatric
          2. The district court abused its discretion by admitting
          certain unfairly prejudicial materials into evidence,
          namely photographs and a videotape.4
          3.  The admission of evidence regarding unadjudicated
          offenses5 during the penalty phase and a lack of a jury
            Webster raises an additional Fifth Amendment argument relating to his
    compelled examination, not addressed in Hall, with which we deal infra.
             Webster attempts to parlay his evidentiary objection into a
    constitutional claim; having upheld the evidence’s admissibility as an
    evidentiary matter, we cannot conclude that its admission nonetheless violated
    his constitutional rights.
              Webster specifically complains about the following evidence:
          •       the oral statement “If I was out now, I’d kill the bitch” that
                  gave him a venereal disease.
          •       the oral statement that killing Lisa Rene wasn’t personal, “it
                  was strictly business.”
          •       an escape attempt where he entered an unauthorized area (the
                  women’s shower) of the Mansfield jail.
          •       the sexual rendezvous with female inmates planned with fellow
                  inmate John Clay.
          •       the alleged shooting at a store owner after an attempted
          •       the assault of Sheila Henry, a girlfriend.
          •       a shoving match over a piece of candy.
    Webster also argues these should have been excluded because of the need for
    sufficient reliability of evidence in capital proceedings. See Caldwell v.
    472 U.S. 320
    , 340 (1985).
          We find ample support in the record of the evidence’s reliability, which
    justifies putting it before the jury. First, it was testimony based on first-
    hand observations; Webster had the opportunity to confront and challenge each of
          instruction requiring the jury to apply some burden of
          proof to this evidence rendered the death sentence
          4.    The admission of nontestimonial victim impact
          statements violated due process and the Eighth Amendment,
          Webster’s Sixth Amendment right of confrontation, and the
          FDPA’s evidentiary standards.
    We addressed and rejected each of these arguments in Hall, which
    controls the outcome here.
          Webster appeals his judgment of conviction and death sentence
    on the following grounds that we must address, as we did not
    consider them in Hall:
          1.   The court erroneously instructed and materially
          misdirected the jury in numerous ways at the penalty
          2.   The court failed to instruct the jury accurately
          regarding on which non-monetary benefit(s) of the
          kidnapping the government relied and regarding the need
          for the jury to agree on such a benefit unanimously in
          order to convict in the guilt-innocence phase.
          3. The court admitted the fruits of a search pursuant
          to, and statements given after, an arrest contravening
    the witnesses.    Second, because Webster was given advance notice that the
    government would be introducing evidence of unadjudicated offenses, he had the
    opportunity independently to investigate and respond to the evidence. Third, the
    government introduced corroborating evidence for several of the incidents.
    Fourth, the statements of which Webster complains were not related to
    unadjudicated offenses; rather, they were statements made to law enforcement
    officers after his arrest. Finally, Webster provides no reason why we should be
    reticent to believe any of the testimony or that the incidents occurred.
            See Hall, 152 F.3d at 398 (compelled psychiatric exam), id. at 400-03
    (evidentiary rulings on photographs and videotape), id. at 403-04 (unadjudicated
    offenses), id. at 404-06 (nontestimonial victim impact statements).
    the Fourth Amendment.
    4.    The court erred by refusing to dismiss the
    government’s notice to seek the death penalty based on
    allegations of racial discrimination in death penalty
    charging decisions and by refusing Webster’s request for
    discovery on that claim.
    5. The court abused its discretion by refusing Webster’s
    motion for post-trial discovery on a claim that the
    government had provided sexual favors to a prisoner-
    6.   The court lacked authority to order Webster to
    undergo a government psychiatric exam as a condition to
    admitting psychiatric testimony in mitigation of
    7.   The court abused its discretion in granting the
    government’s Witt challenge to a venireman.
    8. The court’s rejection of defense challenges for cause
    to impaired and biased veniremen denied Webster an
    impartial jury and his statutory right to free exercise
    of peremptory challenges.
    9. The court erred in excusing a venireman whose juror
    questionnaire contained false information.
    10. The court clearly erred in denying Webster’s Batson
    11. The court erred by impaneling an alternate juror
    during the penalty phase who did not deliberate during
    the guilt-innocence phase.
    12. The court violated Webster’s constitutional rights
    and abused its discretion by limiting surrebuttal.
    13.   The court plainly erred and violated Webster’s
    constitutional rights by entering a factual finding that
    he is not mentally retarded.
    14.   There is insufficient evidence to support the
    sentence of death.
    15. Certain provisions of the FDPA are unconstitutional.
          16.   The court sua sponte should have suppressed the
          testimony of Webster’s co-conspirators, who testified in
          exchange for leniency.
    We address each of these issues in turn.
          Webster contends that the district court erroneously in-
    structed and materially misdirected the jury at the penalty phase.
    District courts enjoy substantial latitude in formulating a jury
    charge, and hence we review all challenges to, and refusals to
    give, jury instructions for abuse of discretion.7
          A conviction will not be reversed for an alleged error in the
    instructions unless, when viewed in their entirety, they fail
    correctly to state the law.         Jones, 132 F.3d at 243; United States
    v. Flores, 
    63 F.3d 1342
    , 1374 (5th Cir. 1995).                 Technical errors
    will be overlooked, and the court’s instructions will be affirmed,
    if the charge in its entirety presents the jury with a reasonably
    accurate picture of the law.         Jones, 132 F.3d at 243.        A refusal to
    give a requested instruction constitutes reversible error only if
    the proposed instruction (1) is substantially correct, (2) is not
    substantively covered in the jury charge, and (3) pertains to an
    important    issue    in   the   trial,    such   that    failure    to   give   it
            United States v. Jones, 
    132 F.3d 232
    , 242-43 (5th Cir. 1998), cert. granted,
    119 S. Ct. 39
     (1998); United States v. Manges, 
    110 F.3d 1162
    , 1176 (5th Cir. 1997),
    cert. denied, 
    118 S. Ct. 1675
    seriously impairs the presentation of an effective defense. United
    States v. Garcia Abrego, 
    141 F.3d 142
    , 153 (5th Cir.), cert.
    119 S. Ct. 182
     (1998); Jones, 132 F.3d at 242.
         Webster argues that the court erred in refusing to instruct
    the jury that, in assessing the aggravating factors, it could
    consider only his intent and conduct and not the words or acts of
    any other codefendant or participant in the crime. The argument is
    without merit.
         Webster’s reasoning hinges on Enmund v. Florida, 
    458 U.S. 782
    (1982), and Tison v. Arizona, 
    481 U.S. 137
     (1987).             He contends
    that these cases require a two-pronged focus in the decision-making
    process to impose a death sentence: the defendant’s participation
    (conduct) and his intent (state of mind).             It follows, Webster
    believes,   that   the   court   should   have   instructed   the   jury    to
    consider only his conduct in assessing the aggravating factors.
         Webster misreads Enmund and Tison.          In those cases, the Court
    addressed the degree of culpability required of a defendant to
    impose a death sentence under the felony-murder doctrine.                  The
    Court did require a certain level of culpable conduct and state of
    mind.     See Enmund, 458 U.S. at 801; Tison, 481 U.S. at 158.    But
    Webster takes the requirement too far.
         The point of Tison and Enmund is that a death sentence may not
    be imposed unless the sentencer has examined the defendant’s “own
    personal involvement in the crimes.”         Tison, 481 U.S. at 158.
    Enmund escaped capital punishment because he “did not kill or
    attempt to kill,” nor did he have “any intention of participating
    in or facilitating a murder.”          Enmund, 458 U.S. at 798.   The
    Tisons, on the other hand, failed to obtain a reversal, because
    they were sufficiently involved in the crimes.     See Tison, 481 U.S.
    at 158.
         The gist of these cases is that before a death sentence may be
    recommended, the Eighth Amendment requires that the defendant, for
    example, killed, inflicted serious bodily injury resulting in
    death, or participated in a felony with reckless disregard for
    human life resulting in death.   The FDPA meets this requirement in
    § 3591, by limiting even the possibility of a death sentence to
    those defendants with sufficient culpability.         The jury found
    Webster guilty of “engaging in conduct intending death to result or
    that lethal force would be used” and of “engaging in conduct
    knowing that it created grave risk of death.”
         Once the constitutionally-required minimum level of culpabil-
    ity is found, however, there is no reason why the jury cannot take
    a broader look at the crime in assessing the aggravating factors;
    it need not limit itself exclusively to the defendant’s conduct or
    intent.     Indeed, an aggravating factor properly may focus on the
    defendant,     on    the   circumstances      of   the   crime     itself,   or   on
    characteristics of the victim.8
           Furthermore, one of the FDPA’s aggravating factors requires a
    jury to examine a factor that has nothing to do with the defen-
    dant’s     conduct    or   intentSSthe       victim’s    vulnerability.           See
    § 3592(c)(11); cf. Tuilaepa, 512 U.S. at 977.                      The government
    alleged that Lisa Rene’s young age rendered her particularly
    vulnerable, hence constituting an aggravating factor.                 Because the
    factor has nothing to do with Webster’s conduct or intent, his
    proffered general instruction would have incorrectly stated the
           In addition, the charge as a whole substantially covered the
    proffered     instruction     and    sufficiently        pointed    the   jury     to
    Webster’s conduct and intent.            The court instructed that “[i]n
    considering the question of intent, as it related to aggravating
            See Tuilaepa v. California, 
    512 U.S. 967
    , 976 (1994) (holding that “[t]he
    circumstances of the crime are a traditional subject for consideration by the
    sentencer,” and may include factors such as the defendant's age); Roberts v.
    431 U.S. 633
    , 636 (1997) (holding that a murder victim’s status as peace
    officer performing regular duties constitutes permissible aggravating factor).
    factors, you may consider only the intent of the defendant, Bruce
    Carneil Webster.”      The aggravating factors, other than the victim
    vulnerability factor, all pointed to Webster’s conduct.                      The
    instructions     explaining     the    factors    repeatedly     referred     to
    Webster's conduct and intent.9          The non-statutory factor Webster
    specifically attacks, “the effect of the offense on Lisa Rene and
    her family,” focuses on the harm caused by Webster’s “commission of
    the offense.”     The court did not abuse its discretion in refusing
    this instruction; including it would have misstated the law.
          Webster    objects   to   the   instruction     on   the   “elements    of
    intent.”    He argues that the court failed to require the jury to
    select a single element of intent, and to do so unanimously.                This
    failure allegedly allowed the jury impermissibly to “double-weigh”
    a single factorSSintentSSin imposing the death penalty, skewing the
    process toward capital punishment.
          Although Webster rightly points out the risk of unconstitu-
    tionally arbitrary application of the death penalty if the jury is
    permitted to double-count aggravating factors, see Jones, 132 F.3d
    at 250-51, the court did not err in this regard.             The instructions
            The court's examples included the following: “'Cruel' means that the
    defendant intended to inflict a high degree of pain . . .,” “'[d]epraved' means
    that the defendant relished the killing or showed indifference . . .,” and “[t]he
    government must prove beyond a reasonable doubt that the defendant committed the
    offense after substantial planning and premeditation.”
    on    the   elements   of   intent    properly    followed      the    language    of
    § 3591(a)(2).        They stated that the jury’s findings as to the
    “elements of intent” had to be unanimous.10                If any doubt remained,
    the special findings form that the jury filled out prominently
    displayed the word “unanimously” before the “yes” and “no” lines to
    be checked for each of the four elements.
           In addition, the instructions accurately charged that the jury
    was not to weigh the elements of intent in deciding whether to
    impose the death penalty.           At least one of the elements of intent
    needs to be found only as a threshold, or gateway, matter; and only
    once at least one is found does the weighing of aggravating factors
    and mitigating factors take placeSSwith no further consideration of
    the “elements of intent.”
           The instructions walked the jury through this sequential
    process.     The court instructed the jury first to determine whether
    one    of   the    requisite   elements   of    intent      existed.      Then    the
    instructions set forth the aggravating and mitigating factors.
           The instructions nowhere indicated that the jury was to
    consider     the    elements   of    intent    once   it    began   to   weigh    the
    aggravating and mitigating factors. In fact, the jury specifically
    was instructed to weigh aggravating and mitigating factors with no
              The court instructed that “you must as a preliminary matter unanimously
    agree that the government has proven beyond a reasonable doubt that the defendant
    . . . either . . .,” followed by a list of the four possible intents, and “if you
    unanimously find . . .” one or more of the elements of intent, the jury was to
    consider aggravating factors.
    mention of the elements of intent.             The special jury form also
    segregated the elements of intent from the lists of aggravating and
    mitigating factors, and made clear the sequential nature of the
         Finally,      the   court    specifically    instructed    the    jury    to
    consider and weigh only the aggravating and mitigating factors
    outlined in the instructions, which did not include the elements of
    intent.    Assuming, as we must, that the jury followed its instruc-
    tions, it did not weigh the elements of intent even once.                     The
    court did    not    abuse   its   discretion     in   denying   the   proffered
         In a similar vein, Webster argues that two of the aggravating
    factors overlapped, allowing the jury to weigh the same factor
    twice.     Specifically, one statutory factor read: “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, Lisa Rene.”          One non-statutory factor addressed “the
    effect of the offense on Lisa Rene and her family, namely, that the
    commission of the offense caused emotional injury and anguish to
    Lisa Rene, and emotional injury, anguish, sorrow, and loss to her
    family.”     Webster contends that these aggravating factors are
    duplicative because “there is no effective distinction between
    infliction of 'severe mental and physical pain or suffering upon
    the victim' (authorized by the court’s instructions for a finding
    on the statutory aggravating factor) and the 'emotional injury and
    anguish to Lisa Rene' focused upon in the 'non-statutory' aggravat-
    ing factor.”
         Webster points out that the charge allowed the jury to find
    that the statutory factor existed based on a finding of “torture,”
    defined to include “mental as well as physical abuse” and the
    intent to “inflict severe mental or physical pain or suffering upon
    the victim,” of which the victim must be conscious.        Webster
    alleges that there is no distinction between the statutory factor’s
    “severe mental or physical pain or suffering” and the non-statutory
    factor’s “emotional injury and anguish.”
         Webster failed to object to these instructions, so we review
    for plain error.   See Jones, 132 F.3d at 243.   The court did not
    err in instructing on both factors because, although they may rely
    on similar underlying facts, they focus on different aspects of the
    crime and its results.
         The statutory factor directs the jury to consider whether
    Webster committed the offense in an especially heinous, cruel, and
    depraved manner, hence focusing attention on his actions and
    intent. The non-statutory victim impact factor, on the other hand,
    directs the jury’s attention to the harm caused by Webster to the
    victim and her family.        This factor looks not to his actions but to
    their result.        Because one factor addresses directly Webster's
    conduct and intent (the “manner” of commission), and the other the
    impact   of   that    conduct   and    intent,   the   two   factors    are   not
           Webster’s reliance on Jones proves unavailing.             In Jones, we
    found two non-statutory aggravating factors duplicative.                      One
    addressed     the    victim’s   “young    age,   her   slight    stature,     her
    background, and her unfamiliarity with [the locale where the crime
    took   place],”      and   another    dealt   with   the   victim’s    “personal
    characteristics” and the impact of the crime.              We held the factors
    duplicative because “'personal characteristics' . . . necessarily
    includes 'young age, slight stature, background, and unfamiliar-
    ity.'”    Id. at 250.
           But the difference between the challenged factors in the case
    sub judice proves to be more than semantic.                The “heinous, cruel
    and depraved” manner in which a crime is carried out, even though
    the instructions require that the victim is conscious of the
    emotional abuse, does not necessarily include, nor even overlap
    with, consideration of the effects of the crime on the victim and
    her family.         The court did not plainly err in providing both
          Webster argues, and the government concedes, that, by allowing
    the jury to consider premeditation with respect to the kidnaping
    and not just the murder, the court improperly charged the jury on
    the statutory aggravating factor of whether Webster engaged in
    “substantial planning and premeditation” of the offense.11                  The
    special    findings    form   also    contained    language    relating     the
    premeditation to the kidnaping rather than to causing death.                The
    statute requires a finding that “the defendant committed the
    offense after substantial planning and premeditation to cause the
    death of a person,” § 3592(c)(9), obviously directing the premedi-
    tation to causing death and not to mere commission of the offense
    when the two diverge. The parties disagree, however, as to whether
    this constitutes reversible error.          We find it does not.
          The government argues that Webster invited the erroneous
    instruction and now should not be heard to complain.               See United
    States v. Baytank (Houston), Inc., 
    934 F.2d 599
    , 606 (5th Cir.
    1991).    Although Webster’s requested jury instruction properly
             The court charged that “[t]o establish the existence of the aggravating
    factor of substantial planning and premeditation, the government must prove
    beyond reasonable doubt that the defendant committed the offense after
    substantial planning and premeditation . . . . The amount of time needed for
    premeditation of a kidnapping in which a death occurs depends on the person and
    the circumstance.” (Emphasis added.)
    focused on substantial planning and premeditation for the murder,
    the government points to his proposed changes to the special
    findings form in which Webster proposed the following language:
    “Beyond a reasonable doubt and looking only to the conduct and
    intentions of the defendant, Bruce Carneil Webster, he, Bruce
    Carneil Webster, committed the killing of Lisa Rene after substan-
    tial planning and premeditation to commit the kidnaping of Lisa
    Rene.”   The   government   surmises   that   the   court   adopted   this
    language in formulating the instructions and special issue.
         Although it is possible that Webster’s misstatement influenced
    the instructions, Webster also proffered instructions correctly
    applying the substantial planning and premeditation to the killing
    rather than to the kidnaping.    Given the inconstant way in which
    Webster addressed the issue, we cannot conclude he invited the
         The error notwithstanding, we affirm the sentence.         The FDPA
    provides that a “court of appeals shall not reverse or vacate a
    sentence of death on account of any error which can be harmless,
    including any erroneous special finding of an aggravating factor,
    where the Government establishes beyond a reasonable doubt that the
    error was harmless.”   § 3595(c)(2)(C).
         Our duty when the jury finds an invalid aggravating factor is
    to strike the factor and either reweigh the remaining factors
    against the mitigating evidence or apply harmless error review.
    See Jones, 132 F.3d at 251; see also Clemons v. Mississippi,
    494 U.S. 738
    , 741 (1990).   If we choose to reweigh the evidence, we
    must determine what the jury would have done absent the invalid
    aggravator.   See Jones, 132 F.3d at 251.
         In conducting a harmless error review, on the other hand, we
    may inquire into whether, beyond a reasonable doubt, either (1) the
    death sentence would have been imposed had the invalid aggravating
    factor been properly defined in the jury instructions or (2) the
    death sentence would have been imposed absent the invalid aggravat-
    ing factor.   See id. at 252.   If the government establishes that
    the error is harmless beyond a reasonable doubt, we may not reverse
    or vacate the death sentence unless such error denies constitu-
    tional rights.   See § 3595.     We may decide which of the three
    methods to apply, although “[i]t matters not which standard of
    review an appellate court chooses to apply because all three
    standards lead to the same conclusion.”     Jones, 132 F.3d at 252.
         The parties expend a great deal of effort arguing whether the
    jury would have found the factor had it been accurately stated.
    The effort is wasted, however, because the sentence may be affirmed
    without that aggravating factor. We opt to apply the second method
    of harmless error review, and inquire into whether the sentence
    would have been imposed absent the invalid aggravator.12
          After removing the offensive statutory aggravating factor, we
    are left with two statutory factors (that Webster committed the
    offense in an especially heinous, cruel, or depraved manner, and
    that Lisa Rene was vulnerable), two non-statutory aggravating
    factors (Webster’s future danger to others, and the effect of the
    crime on Lisa Rene’s family), and nine mitigating factors found to
    exist by varying numbers of jurors.          The government contends, and
    we agree, that the facts supporting the “especially heinous, cruel
    or   depraved”    factor   alone,    when   weighed    against    the   extant
    mitigating factors, justify a finding that the jury still would
    have imposed a death sentence.          The addition of the other three
    factors merely buttresses the conclusion.13
          Furthermore, we fail to see why the jury would have placed
    much emphasis on the invalid factor as it was improperly defined
    and charged.     The import of substantial planning and premeditation
    to commit the offense of kidnaping pales in comparison to the
    brutal nature of Webster’s actions and the suffering Lisa Rene must
    have felt as a result, so we do not think the jury would have
    placed significant weight on the invalid factor relative to the
             We also find that the government has established beyond a reasonable
    doubt that the jury would have found the aggravating factor if the instructions
    properly had charged the jury on it; thus we can affirm under the first harmless
    error review, as well.
            Webster asserts that we should give the aggravating factor dealing with
    victim vulnerability little weight because the Hall jury did not find it. But
    Webster’s jury did, and we refuse to question that determination.
         Finally, the paltry mitigating factors that the jury found
    fail to indicate that it placed much weight on countervailing
    factors. No juror found that Webster had talents, capabilities, or
    qualities of some value to society or that he could be of some
    productive value in a prison setting.           Only two jurors believed
    that he even could be controlled in a prison setting, and only two
    found he likely would adapt to prison.           The jury found only one
    factor unanimously:       Webster suffered from physical or emotional
    abuse or parental neglect during his upbringing; and yet no juror
    believed that this abuse caused significant impairment of Webster’s
    ability to appreciate the wrongfulness of his conduct or to conform
    his conduct to the requirements of the law.            The government has
    proven beyond a reasonable doubt that the jury would have imposed
    the death sentence absent the invalid aggravating factor, so its
    inclusion was harmless error.14
         Webster contends that the court erred when it refused to
    submit several nonstatutory mitigating factors.15           Just this past
             We see no reason why the inclusion of the invalid factor rises to the
    level of a denial of constitutional rights that would require vacating the
              The rejected factors are:
         8. The defendant . . . suffers from a mental disease, illness,
    Term, however, in Buchanan v. Angelone, 
    118 S. Ct. 757
    , 761 (1998),
    the    Court squarely held that, although “the sentencer may not be
    precluded from considering, and may not refuse to consider, any
    constitutionally relevant mitigating evidence,” a death penalty
    scheme       “may   shape    and   structure    the   jury’s   consideration   of
    mitigation so long as it does not preclude the jury from giving
    effect to any relevant mitigating evidence.”                   The Court further
    explained that its “decisions suggest complete jury discretion is
    constitutionally permissible.”            Id.
           The standard for reviewing jury instructions on mitigation is
    “whether there is a reasonable likelihood that the jury has applied
    the challenged instruction in a way that prevents the consideration
    of    constitutionally        relevant   evidence.”       Id.    (quotation    and
    citation omitted).           Indeed, in Buchanan, refusing to submit four
    statutory mitigating factors             during the penalty phase of the
    capital trial fell short of constitutional error.
           Many of the mitigating factors presented to the jury touched
    on the ones Webster complains were omitted.                To ensure that the
           defect, or personality disorder; . . .
           13. The defendant . . . has personal qualities which are worth
           saving; . . .
           14. The defendant . . ., due to circumstances of intellectual
           impairment, and dysfunctional family background, and upbringing,
           should be extended mercy; . . .
           21. The defendant . . ., if not sentenced to death, will be
           sentenced to life in prison without any possibility of parole or
    jury considered all potentially mitigating evidence, the special
    findings form included a catch-all mitigation factor.              The charge
    specifically instructed the jury that it “must consider” any other
    mitigating factors it found, “whether or not specifically argued by
    defense counsel.”
          The instructions left no room for the jury to ignore constitu-
    tionally relevant evidence.          The court neither committed constitu-
    tional error nor abused its discretion in rejecting the mitigating
          Webster avers that the instructions misstated the law by not
    requiring, once one or more jurors had found a mitigating factor to
    exist by a preponderance of the evidence, that all jurors             consider
    a   mitigating      factor   in     weighing   aggravating   and   mitigating
    factors.16 Webster misreads the statute; although any one juror may
    find and weigh a mitigating factor, the others may make their own
    determinations with respect to each mitigator.
               The court charged that
          [a] finding with respect to a mitigating factor may be made by any
          one or more of the members of the jury, and any member who finds the
          existence of a mitigating factor may consider such factor
          established regardless of whether any other jurors agree that such
          mitigating factor has been established. . . .        In determining
          whether a sentence of death is appropriate, each of you must weigh
          in your own mind, any aggravating factor or factors that the jury
          unanimously finds to exist beyond a reasonable doubt—whether
          statutory or non-statutory—against any mitigating factor or factors
          that you individually find to exist by a preponderance of the
           Webster relies on § 3593(e), which reads, in part, “the jury
    . . . shall consider whether all the aggravating factor or factors
    found to exist sufficiently outweigh all the mitigating factor or
    factors found to exist to justify a sentence of death.”              Webster
    reads this provision to say that once any juror finds a mitigating
    factor, all jurors must weigh the factor.         But the quoted language
    does   not   require   Webster’s   reading;     the    provision   lacks   any
    modifier indicating who must find or weigh the mitigating fac-
           Reading the section as a whole, we conclude that Congress did
    not intend Webster’s reading.         The prior subpart states that “[a]
    finding with respect to a mitigating factor may be made by 1 or
    more members of the jury, and any member of the jury who finds the
    existence of a mitigating factor may consider such factor estab-
    lished for the purposes of this section regardless of the number of
    jurors    who   concur   that   the    factor    has    been   established.”
    § 3593(d).      Reading the two sections in pari materia, we reason
    that the language does not contemplate forcing all jurors to
    consider a mitigator when any one or more finds it to exist.
    Rather, each juror may consider a factor regardless of whether
    others concur.     In addition, it would be nonsensical for Congress
    to require a juror to weigh a factor that he or she does not
    believe the evidence warrants.
           Webster, in an apparent attempt to avoid this last problem,
    argues that “[o]nce a mitigating factor has been established, then
    the sentencer must consider it, even though it may be assigned
    whatever weight it is deemed to deserve.”    But, naturally, those
    jurors who did not find the mitigating factor to exist would assign
    it no weight, which does not differ from the result Webster hopes
    to avoid, i.e., not requiring them to consider it at all.   Because
    the plain language of the statute does not compel every juror to
    weigh each mitigating factor found by at least one juror, the
    court did not abuse its discretion in denying the instruction that
    would have required it.
         The indictment alleged, inter alia, that Webster and others
    violated 18 U.S.C. § 1201(a), proscribing kidnaping.   Pursuant to
    that indictment, the court charged the jury that to convict, it had
    to find beyond a reasonable doubt the element “[t]hat the defendant
    held such person for ransom, reward, or some other benefit that the
    defendant intended to derive from the kidnapping.”       The court
    further charged that “a benefit is any legal or illegal object of
    the kidnaping which a perpetrator might consider sufficient motive
    to induce him to undertake the kidnaping.   The government has the
    burden of proving whatever benefit alleged by proof beyond a
    reasonable doubt.”
         Webster objects to this instruction on the ground that,
    because the indictment failed to allege any specific benefit other
    than ransom or reward, the jury should not be able to consider any
    other   benefit,   and    because   the    instruction    fails   to   require
    unanimity on the benefit found.           The government responds that the
    benefit is not a specific element of the crime, so it need not
    allege one in the indictment, nor does one need to be specified in
    the jury instructions; furthermore, unanimity is not required.
         We review alleged errors in jury instructions for abuse of
    discretion; a conviction will not be reversed for an alleged error
    in the instructions unless, when viewed in their entirety, they
    failed to state the law correctly.          Jones, 132 F.3d at 243.      These
    instructions did not fail to state the law correctly.
         The parties agree that the kidnaping statute protects those
    who have been kidnaped and held for any reason.            Before 1934, the
    Federal Kidnaping Act applied only if the captive was held for
    ransom or reward.        See United States v. Healy, 
    376 U.S. 75
    , 81
    (1964). Congress amended the Act in 1934 to encompass persons held
    “for ransom or reward or otherwise.”             Id.     In Gooch v. United
    297 U.S. 124
    , 128 (1936), the Court interpreted the “or
    otherwise” amendment to encompass any benefit a captor might
    attempt to receive. Subsequently, in Healy, the Court held the Act
    is not limited to kidnapings for an ultimately illegal purpose.17
          Consistent with the Court’s pronouncements, this court held in
    Clinton v. United States, 
    260 F.2d 824
    , 825 (5th Cir. 1958), that
    an indictment need not include the words “for ransom, reward or
    otherwise.”     The panel reasoned that the phrase would add nothing
    “because obviously 'otherwise' comprehends any purpose at all.”
          Webster asserts that we overruled Clinton in United States v.
    68 F.3d 94
     (5th Cir. 1995).           In Osborne, we held that the
    government must prove four elements of the kidnaping offense:
    “1) the transportation in interstate commerce; 2) of an uncon-
    senting person who is 3) held for ransom, reward, or otherwise; and
    4) the acts were done knowingly and willingly.”                    Id. at 100.
    According to Webster, the third element requires the government to
    plead in the indictment and prove up at trial, and the court to
    instruct the jury on, some specific purpose(s) for the kidnaping.
          Osborne does not compel this conclusion. We certainly did not
    purport to overrule Clinton’s holding that the indictment need not
    include a benefit; the issue was not before us in Osborne.                     And
    nothing in Osborne contravenes Clinton.                 More accurately, the
             See Healy, 376 U.S. at 82 (stating that “we find no compelling correlation
    between the propriety of the ultimate purpose sought to be furthered by a kidnaping
    and the undesirability of the act of kidnaping itself”).
    gravamen of the third element is the act of holding, not the
    benefit.   If “otherwise” can include any purpose, adding it to the
    indictmentSSirrespective of whether it specifies the “otherwise”
    benefitSSadds nothing.      This view consists with that of our sister
             See United States v. Adams, 
    83 F.3d 1371
    , 1372-74 (11th Cir. 1996)
    (indictment sufficient that alleged only that the victim was “held”); United
    States v. Martell, 
    335 F.2d 764
    , 766 (4th Cir. 1964 (same); Hayes v. United
    296 F.2d 657
    , 665-67 (8th Cir. 1961) (same); United States v. Atchison,
    524 F.2d 367
    , 369-71 (7th Cir. 1975) (indictment sufficient that merely alleged
    victim was held for “ransom, reward, or otherwise”); United States v. Bentley,
    310 F.2d 685
    , 685 (6th Cir. 1962) (same); Hall v. United States, 
    410 F.2d 653
    659-60 (4th Cir. 1969) (same); Loux v. United States, 
    389 F.2d 911
    , 914-16 (9th
    Cir. 1968) (same).
          Webster points out that in many of the above-mentioned cases,
    including Clinton, one reason the court gave for finding the lack
    of specificity unproblematic is that the defendant can request a
    bill of particulars to clarify on what benefit the government will
    rely.      Webster made such a request, which the court denied; he
    complains that this prevented him from presenting an effective
    defense.     We fail to see how.
          Although    the    government     must   plead       and   prove    that   the
    defendant held the victim for some purpose, the exact nature of
    that purpose is inconsequential.             Indeed, as noted, any purpose
    will do.      In arguments to the jury, the government mentioned
    several possible        benefits,    including      retribution     and   revenge,
    sexual gratification, greed, and that Lisa Rene knew too much; all
    are valid benefits. In light of this breadth, Webster’s claim that
    the   failure    to   specify   a   benefit    in    the    indictment     or    jury
    instructions denied him a defense is vapid.
          If any benefit will do, the only possible defense is that the
    defendant obtained absolutely no benefit at allSSand no pleading or
    jury instruction is needed to prepare the defendant for this
    defense.     Accordingly, we decline to require specificity in the
    factual basis of the benefit.19
            Cf. United States v. Barnhart, 
    889 F.2d 1374
    , 1378 (5th Cir. 1989) (holding
    factual basis for falsity in perjury indictment not required).
         The only circumstance under which a jury might need to be
    instructed on specific potential benefits is if the jurors must
    agree unanimously on what benefit the defendant derived; if that is
    the case, failure to instruct on particular benefits (as well as
    the failure to instruct on the required unanimity, of course) might
    constitute reversible error.          On the other hand, if unanimity is
    not required, an instruction on specific benefits proves pointless,
    because   each   juror   can   pick    a    benefit   from   among   the   facts
    presented at trial.
         The question, then, should be framed as follows:                  If some
    jurors believed that Webster held Lisa Rene for one purpose, e.g.,
    sexual gratification, and others believe for another benefit, e.g.,
    revenge for a drug deal gone bad, does that disagreement, that lack
    of unanimity, evidence a reasonable doubt that Webster held Lisa
    Rene for some benefit?     The inquiry is governed by United States v.
    6 F.3d 1070
     (5th Cir. 1993).
         In Correa-Ventura, we analyzed whether a jury needed to reach
    unanimous consensus on which of several weapons seized from the
    defendant’s apartment had been used in the commission of a drug
    trafficking offense.     In the process of holding factual unanimity
    was not required, we explicated the case-by-case analysis we must
    follow here.     See id. at 1081.
         As we explained, the unanimity rule ensures that the jury has
    found   guilt    beyond   reasonable    doubt,   and   disagreement    as   to
    critical facts may reflect such doubt.           Id. at 1078.    But not all
    facts require unanimity.       To determine which ones do, we examine
    “[s]tatutory     language    and   construction,       legislative    intent,
    historical treatment of the crime by the courts, duplicity concerns
    with respect to defining the offense, and the likelihood of jury
    confusion in light of the specific facts presented.”            Id. at 1082.
    After considering these factors, we conclude that the jury need not
    concur on the benefit the defendant derived from holding the
    kidnaping victim.
         Looking at the language of the element, we see that the actus
    reus proscribed is the “holding” of a victim.            The benefit, “for
    ransom, reward, or otherwise,” merely adds purpose to the act of
    holding.    Looking to the offense as a whole, we see that the
    essential elements, stripped to the bones, are transporting and
    holding against consent with a mens rea. The “interstate commerce”
    serves as a mere jurisdictional hook, and the benefit language
    simply provides guidance to a jury in understanding the crimeSSwhy
    the defendant may have committed the offense.                 The essence of
    kidnaping   is   a   non-consensual     transporting    and   holding,   done
    wilfully or knowingly; the language in no way implies that the
    benefit serves an important function in singling out the guilty
    from the innocent or in deterring future conduct.
         The history of the offense also points to the insubstantial
    role of the benefit.         The Supreme Court has admonished that
    Congress added the “or otherwise” language because “ransom or
    reward” proved too narrow; Congress desired to expand the statute
    by eliminating the limiting effect that the phrase had.            See Gooch,
    297 U.S. at 128; Healy, 376 U.S. at 81-82.          We should not circum-
    scribe    the   statute’s   reach,   once   again   giving   the    phrase   a
    narrowing function, by requiring factual concurrence among the
         Interpretive caselaw and the issue of duplicative convictions
    also support rejecting a unanimity requirement. As cited above, we
    and our sister circuits always have emphasized the breadth of the
    benefit phrase.      We are aware of no case in which a court has
    limited the kidnaping offense through the benefit requirement.
         In addition, concerns regarding duplicative convictions have
    not arisen.     Webster does not argue that a lack of concurrence on
    the factual predicate of a benefit risks duplicative convictions
    for a single act of holding and transporting.          We know of no case
    in which a defendant was convicted of or even charged with multiple
    kidnaping offenses of the same victim because it was done for more
    than one benefit.
         Finally, the circumstances of the instant case do not justify
    vacating the sentence and requiring unanimity on the benefit.
    Several benefits were argued to the jury.           There was sufficient
    evidence from which a juror could find that Webster was motivated
    by the lure of those benefits.              Indeed, if unanimity had been
    required, it is likely that the jury unanimously would have found
    several benefits garnered by Webster, including revenge and sexual
    gratification. The court provided a general unanimity instruction,
    focusing the jury’s attention on the need to agree on the essential
    elements of the crime.          Unanimity on the factual basis of the
    benefit is not required, and the court did not abuse its discretion
    in refusing Webster’s instruction.20
          Webster contends that his arrest was unconstitutional and that
    the fruits obtained from it should have been suppressed.                    More
    specifically, he argues that the court erred by failing to suppress
    the fruits of the search of Webster and his automobile following
    his arrest, that any purported consent given by him was nullified
    by the illegality of the arrest, and that the court erred by
    failing to suppress his statements following his arrest.                       It
    readily becomes apparent that Webster’s arguments hinge on his view
    that the arrest was unconstitutional.            Because we find both this
    arrest and subsequent police conduct fully constitutional, the
    court properly admitted the fruits of the search and the subsequent
             Cf. Correa-Ventura, 6 F.3d at 1076-86 (no unanimity requirement as to
    particular firearm used in 18 U.S.C. § 924(c) prosecution); United States v. Linn,
    889 F.2d 1369
    , 1374 (5th Cir. 1989) (holding that jury need not be unanimous as to
    identity of five individuals in prosecution for continuing criminal enterprise);
    United States v. Sutherland, 
    656 F.2d 1181
    , 1202 (5th Cir. Unit A Sept. 1981) (no
    unanimity requirement as to overt acts in multiple-object conspiracy).
           The issues of probable cause and reasonable suspicion, which,
    in this case, control the constitutionality of Webster’s arrest,
    are mixed questions of law and fact.                   See United States v.
    130 F.3d 117
    ,    120   (5th    Cir.   1997),    cert.   denied,
    118 S. Ct. 1335
     (1998).          So, we review the historical facts for
    clear error    and   ultimate     legal      determinations     de   novo.   Id.
    Because Webster does not challenge the findings of fact, our review
    is limited to a de novo review of the legal conclusions.
           The Fourth Amendment requires that all arrests be based on
    probable cause.      See U.S. CONST. amend. IV; Gerstein v. Pugh,
    420 U.S. 103
    , 111 (1975).        Probable cause is “defined in terms of
    facts and circumstances 'sufficient to warrant a prudent man in
    believing that the [suspect] had committed or was committing an
    offense.'”     Gerstein, 420 U.S. at 111 (quoting Beck v. Ohio,
    379 U.S. 89
    , 91 (1964)) (alteration in original).                Based on this
    standard, the police had probable cause to arrest Webster.
           The day before the arrest, police took a written statement
    from    Beckley,   Webster’s     partner-in-crime.         This      inculpatory
    statement suggested Webster’s criminal involvement in the kidnaping
    (and ultimate murder) of Lisa Rene.   Such statements taken from an
    accomplice give rise to probable cause to arrest those so impli-
    cated. United States v. Barfield, 
    507 F.2d 53
    , 58 (5th Cir. 1975).
         Matters admittedly are complicated by the fact that, although
    the police had probable cause to arrest Webster following Beckley’s
    statements, they did not know exactly who Webster was.     That is,
    the issue of identification comes into play, as the police must
    have had probable cause to believe that the man whom they arrested
    was indeed Webster. Based on the totality of the circumstances, we
    find that such probable cause existed.
         Beckley identified Webster as “B-Love” and described him as “a
    black dude about 20 years old, about 5'9", 150-160 pounds, black
    low cut hair, brown skinned.”   Beckley explained how he and B-Love
    were involved in the sale of marihuana and how the kidnaping of
    Lisa Rene arose from Beckley and Webster’s drug transactions.
         Beckley told the police that he and B-Love took Lisa Rene to
    a cheap motel, tying her to a chair in a room that ended in the
    digits “13.”   Beckley led Detective Ford and FBI Special Agent
    Floyd to this motel, called the Pine Bluff Motel.    He took them to
    room 513, which he identified as the room in which he and B-Love
    had taken Rene.   Floyd interviewed the hotel manager, obtaining a
    receipt for room 513 in the name of Bruce Webster.
         FBI Special Agent Mason and Agent McCall were assigned to
    assist Ford and Floyd by going to the motel to help gather
    evidence.   They were told to be on the lookout for “B-Love,” who
    had kidnaped Lisa Rene and kept her in room 513.   Mason and McCall
    questioned a security guard about the guests of room 513 and were
    told that a local man named Bruce Webster had stayed in that room,
    along with three other black men, on the dates in question.     The
    guard added that Webster went by the nickname of “B-Love” and
    described him as “a black male, approximately 5'8" tall and 150
    pounds,” seen wearing a black leather cap and driving an older
    American, dark blue, square-looking sedan. The guard also told the
    agents that Webster was a drug dealer.
         Later that day, the agents observed a black man driving an
    older American, dark blue, square-looking car and wearing a black
    leather cap; a woman was in the passenger seat.          The agents
    signaled the suspect to stop; in response, the suspect sped up,
    apparently attempting to flee. The agents pursued, and when one of
    them shouted “B-Love, this is the F.B.I.    Stop where you are and
    put your hands up,” the driver stopped.   The driver was, of course,
    Webster, also known as B-Love.    At that point, the police placed
    Webster on the ground and handcuffed him.
         The agents had probable cause to arrest Webster for kidnaping.
    Although they did not have personal knowledge of his specific
    wrongdoings, they are permitted to act on the probable cause
    determination of others in their department. See Charles v. Smith,
    894 F.2d 718
    , 724 (5th Cir. 1990).
          The security guard’s description of B-Love was sufficiently
    detailed and accurate to provide the police with probable cause to
    believe that      the   man   they were      arresting     was   B-Love.21      The
    reliability (in terms of veracity) of the guard, as a disinterested
    witness, is presumed.         See United States v. Hernandez, 
    825 F.2d 846
    , 849 (5th Cir. 1987).
          Moreover, “the sufficiency of a particular description is
    largely a factual matter,” so we give greater deference to the
    district court’s finding of probable cause under these circum-
    stances.     See Pollack, 739 F.2d at 190.          And in doing so, we must
    recall     that   “sufficient     probability,      not    certainty,     is    the
    touchstone of reasonableness under the Fourth Amendment.”22
          Even if the police initially lacked probable cause to arrest
    Webster, they most certainly had reasonable suspicion to stop him.
    See Terry v. Ohio, 
    392 U.S. 1
    , 22-24 (1968); United States v.
    953 F.2d 895
    , 897 (5th Cir. 1992). Their actions following
             See, e.g., United States v. Pollack, 
    739 F.2d 187
    , 190 (5th Cir. 1984)
    (holding that probable cause existed to arrest individual described as “a white
    male, approximately 50 years old, 5'8 or 5'9, with a short, stocky, medium build,
    glasses, and a receding hairline, wearing a dark blue or black coat, a light colored
    shirt and blue jeans”); United State v. Maryland, 
    479 F.2d 566
    , 569 (5th Cir. 1973)
    (declaring that probable cause existed to arrest individuals described as “four
    Negroes, two men and two women . . . traveling in a 'black and white vinyl over
    green Cadillac'”).
            Hill v. California, 
    401 U.S. 797
    , 804 (1971) (holding that probable cause
    existed even though the police arrested the wrong person because of an imperfect
    this legitimate stop were likewise constitutional, so all the
    evidence and statements gathered from Webster are admissible.
         Reasonable suspicion is a standard lower than probable cause.
    Terry, 392 U.S. at 16-22; Watson, 953 F.2d at 897 n.1.         Reasonable
    suspicion sufficient to justify a Terry stop exists when law
    enforcement officials are able to point to “specific and articul-
    able facts which, taken together with rational inferences from
    those facts, reasonably warrant that intrusion.”         Terry, 392 U.S.
    at 21.   The matching description of Webster, taken together with
    the guard’s identification of him as a drug dealer and his presence
    at the motel, satisfy this test of reasonable suspicion.
         After stopping Webster, the police were within their constitu-
    tional authority to pat him down for their personal safety. Terry,
    392 U.S. at 27-28; United States v. Michelletti, 
    13 F.3d 838
    840-41 (5th Cir. 1994) (en banc).          They also were within their
    authority to handcuff Webster, even if probable cause to arrest him
    was lacking.   See United States v. Sanders, 
    994 F.2d 200
    , 205-07
    (5th Cir. 1993).
         In addition, the police acted constitutionally when they asked
    Webster whether he had any needles in his pockets that could injure
    them during their pat down; such questioning, needed to protect the
    officers,   does   not   constitute    interrogation   under   Miranda   v.
    384 U.S. 436
     (1966).         See New York v. Quarles, 
    467 U.S. 649
    , 655 (1984).    Accordingly, Webster’s response, indicating that
    he had marihuana in his pocket, was not obtained in violation of
    Miranda and was fully admissible.
          Webster’s admission that he possessed marihuana gave the
    police     probable   cause   to   arrest    him,   at   the   very   least    for
    narcotics possession.          This renders unproblematic the lengthy
    (1½-hour) detention of which Webster complains.
          Lengthy detentions following Terry stops are often problem-
    atic, because they serve to escalate an investigatory stop, which
    can be initiated with only reasonable suspicion, into an arrest,
    which requires probable cause.23              In this case, however, the
    officers’ reasonable suspicion developed into probable cause when
    Webster indicated that he possessed drugs, and when the police
    uncovered the key to room 513 on his person.                Consequently, the
    conversion of Webster’s investigatory stop into an arrest is both
    proper and to be expected.         Adams, 407 U.S. at 148-49.         The search
    of Webster’s person was in order as a valid search incident to a
    valid arrest.     United States v. Edwards, 
    415 U.S. 800
    , 802 (1974).
          Next, the police searched Webster’s car, revealing two guns
    and other incriminating items.           There are two valid, independent
    justifications for this police action, although only one is needed
    to affirm.
          First, as the search of Webster’s person revealed a key to
             See Adams v. Williams, 
    407 U.S. 143
    , 146 (1972); see also California v.
    463 U.S. 1121
    , 1123-25 (1983) (holding that whether an individual has been
    arrested, in the constitutional sense, is an objective, legal determination based
    on the circumstances of his restraint).
    room 513, police now had undisputable probable cause to arrest for
    the kidnaping.         Therefore,     it   was   reasonable        for    the   police
    thoroughly to search Webster’s car for evidence of the kidnaping.
    See California v. Acevedo, 
    500 U.S. 565
    , 579-80 (1991).
         Second,     Webster   orally      consented     to     this    search.        See
    Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 235 (1973).                     Such consent
    operates as a waiver of Fourth Amendment rights if, by a preponder-
    ance of the evidence, it is found to have been given voluntarily
    under the totality of the circumstances. See id. at 235-40; United
    States v. Cooper, 
    43 F.3d 140
    , 144 (5th Cir. 1995).                       Factors to
    consider in making this determination are the coerciveness of
    police procedures, the extent of the defendant’s cooperation, his
    awareness   of   his    right   to   refuse      consent,    his    education      and
    intelligence, and his belief as to whether incriminating evidence
    will be found.     Cooper, 43 F.3d at 144.
         Webster’s experience in police procedure, resulting from his
    lengthy criminal record, belies the assertion that he was unaware
    of his rights or uneducated as to the situation he faced.                       And the
    fact that the police asked him not once but twice for permission to
    search his automobile (the second time being when they came to the
    trunk of the car) undercuts the argument that the police were
    coercive in their request.           Under these facts, Webster’s consent
    was freely given.
         Webster argues that the court erred by denying his motion to
    dismiss the government’s notice to seek the death penalty based on
    racial discrimination in the charging decision and by denying his
    discovery request on this issue. To support the motion to dismiss,
    Webster offered an affidavit showing that 66% of federal death
    penalty cases involved black defendants. The court denied both the
    motion to dismiss and the motion for discovery and an evidentiary
    hearing, noting that Webster had failed to make out the requisite
    prima facie case that he had been singled out for prosecution but
    others similarly situated were not prosecuted.
         We review constitutional claims de novo. See Estrada-Trochez,
    66 F.3d 733
    , 735 (5th Cir. 1995).         A district court’s decisions in
    overseeing criminal discovery, however, receive great deference on
    appeal.   Alleged    errors   are    subject     to   review   for   abuse   of
    discretion,   and   we   reverse    only    if   a    defendant   establishes
    prejudice to substantial rights.          United States v. Mora, 
    994 F.2d 1129
    , 1138 (5th Cir. 1993).
         The decision to prosecute one person and not another is a
    proper exercise of executive discretion with which we are reticent
    to interfere.   United States v. Hoover, 
    727 F.2d 387
    , 389 (5th Cir.
    1984). To establish that the government has engaged in unconstitu-
    tionally discriminatory selective prosecution, a defendant must
    make a two-pronged showing.
         First, he needs to make out a prima facie showing that he has
    been singled out for prosecution but others similarly situated of
    a different race were not prosecuted.             See United States v.
    517 U.S. 456
    , 465 (1996); United States v. Sparks,
    2 F.3d 574
    , 580 (5th Cir. 1993); Hoover, 727 F.2d at 389.                 In
    Armstrong, the Court stated, “The vast majority of Courts of
    Appeals   require   the   defendant    to   produce   some   evidence   that
    similarly situated defendants of other races could have been
    prosecuted, but were not, and this requirement is consistent with
    our equal protection case law.”             Armstrong, 517 U.S. at 469.
    Second, he must demonstrate that the discriminatory selection of
    him for prosecution is invidious or in bad faith, in that it rests
    on such impermissible considerations as race, religion, or the
    desire to prevent his exercise of his constitutional rights.             See
    Sparks, 2 F.3d at 580; Hoover, 727 F.2d at 389.
         In making these requisite showings, the defendant must rebut
    the presumption that the government made its decision to prosecute
    in good faith and in a nondiscriminatory manner.         Hoover, 727 F.2d
    at 389.   To dispel the presumption of prosecutorial good faith, “a
    criminal defendant must present 'clear evidence to the contrary.'”
    Id. at      465    (quoting    United   States   v.   Chemical   Found.,    Inc.,
    272 U.S. 1
    , 14-15 (1926)).
          A defendant is not automatically entitled to an evidentiary
    hearing to make the required showing.            He must first present facts
    “sufficient to create a reasonable doubt about the constitutional-
    ity of [his] prosecution” resulting from selective prosecution.24
    Mere statistical evidence of racial disparity usually will be
    per se insufficient to support an inference of any “unacceptable
    risk” of racial discrimination in the administration of capital
    punishment.        McCleskey v. Kemp, 
    481 U.S. 279
    , 294-97 (1987).
          Webster has failed to make a sufficient showing that he was
    singled out for selective prosecution.             He has not even attempted
    to   show    that    other    similarly    situated   individuals      committing
    similar     acts    were     not   prosecuted.    Such   a   showing    would   be
    challenging under the FDPA, as no one yet had been prosecuted under
    that Act when Webster was indicted.               But Webster also did not
    attempt to make the showing under other federal death penalty acts.
          Webster relies primarily on his statistical evidence, which
             United States v. Jennings, 
    724 F.2d 436
    , 445-46 (5th Cir. 1984) (finding
    bare generic allegations concerning the selective prosecution of racial groups
    insufficient to justify an evidentiary hearing); United States v. Ramirez, 
    765 F.2d 438
    , 440 (5th Cir. 1985) (holding “conclusional allegations of impermissible motive
    are not sufficient” to demonstrate the government acted in bad faith).
    under McCleskey fails to rebut the good faith presumption. Webster
    cites McCleskey, 481 U.S. at 293 n.12, which may allow finding a
    constitutional violation (or prima facie finding thereof) in very
    limited    circumstances     if   the   data   presents    a   “stark”   enough
    picture. But the 66% figure Webster provides is no more stark than
    were the statistics in the Baldus Study at issue in McCleskey.25
          Webster also argues that counsel would have shown that they
    had requested that the Department of Justice consider this racial
    disproportionality as a factor mitigating against authorization of
    the death penalty in this case, and the government refused because
    of “the purported 'race neutrality' required by DOJ policies in
    capital charging decisions.”            Likewise, Webster contends that
    “failure of the Government to 'affirmatively act' to overcome such
    racially discriminatory application” of the death penalty “amounted
    to purposeful discrimination.”          This, however, fails to establish
    the discriminatory purpose required under the second prong of the
    selective prosecution test.
          Discriminatory purpose “implies that the decisionmaker . . .
    selected or reaffirmed a particular course of action at least in
    part 'because of,' not merely 'in spite of,' its adverse effects
    upon an identifiable group.”        Id. at 291 (quotation omitted).          The
            Baldus reported that Georgia prosecutors sought the death penalty in 70%
    of the cases involving black defendants and white victims, 32% of the cases
    involving white defendants and white victims, 15% of the cases involving black
    defendants and black victims, and 19% of the cases involving white defendants and
    black victims. See McCleskey, 481 U.S. at 287.
    above evidence, at best, shows action in spite of a putatively
    adverse discriminatory effect and not purposeful discrimination.
          Furthermore, a non-discriminatory explanation for seeking the
    death penalty against Webster is evident on the facts:                   It is
    justified by the objective circumstances of the crime and the
    sufficiency and availability of evidence to prove the required
    elements under the law.        These are the precise considerations the
    Supreme Court identified as proper and legitimate grounds for such
    a decision.     See id. at 307 n.28.            The verdict attests to the
    objective considerations, and Webster has made no effort to rebut
          Webster’s attempt to obtain discovery on the issue stands on
    equally faulty ground. In Armstrong, the Court addressed the issue
    of   the   showing    necessary   to   obtain    discovery   on   a   claim    of
    selective prosecution based on racial discrimination.                 The Court
    first quickly disposed of any claim for discovery under FED. R.
    CRIM. P. 16, stating, “We hold that Rule 16(a)(1)(C) authorizes the
    defendants    to     examine   Government   documents    material       to    the
    preparation of their defense against the Government’s case-in-
    chief, but not to the preparation of selective-prosecution claims.”
    Armstrong, 517 U.S. at 463.
          Webster contends that a defendant “necessarily has a lesser
    burden when seeking discovery to aid in proving the elements of a
    prima facie case of selective prosecution.”         The Court, however,
    held squarely against Webster’s assertion, stating, “The justifica-
    tion for a rigorous standard for the elements of a selective
    prosecution claim thus require a correspondingly rigorous standard
    for discovery in aid of such a claim.”       Id. at 468.
         Finally, Webster argues that he requested the discovery also
    to establish mitigating evidence that a death sentence would
    propagate a racially discriminatory application of the federal
    death penalty.      Webster makes no argument other than that a
    defendant is entitled to present any mitigating evidence, which he
    was denied by denial of the discovery request.
         The government aptly responds that the Armstrong discovery
    rule for selective prosecution applies, requiring a prima facie
    showing.   Any other rule would allow circumvention of Armstrong’s
         Furthermore,   the   Court   in    Armstrong   justified   its   high
    standard for discovery in selective prosecution claims, explaining:
         Judicial deference to the decisions of [prosecutors]
         rests in part on an assessment of the relative competence
         of prosecutors and the courts.      Such factors as the
         strength of the case, the prosecution’s general deter-
         rence value, the Government’s enforcement priorities, and
         the case’s relationship to the Government’s overall
         enforcement plan are not readily susceptible to the kind
         of analysis courts are competent to undertake. It also
         stems from a concern not to unnecessarily impair the
         performance of a core executive constitutional function.
         Examining the basis of a prosecution delays the criminal
         proceeding, threatens to chill law enforcement by
         subjecting the prosecutor’s motives and decisionmaking to
         outside inquiry, and may undermine prosecutorial effec-
         tiveness by revealing the Governments enforcement policy.
    517 U.S. at 465 (citations and quotations omitted). The competency
    concerns apply a fortiori when lay jurors are asked to analyze
    prosecutorial decisions.
         In addition, Webster had the statistical evidence regarding
    the allegedly discriminatory manner in which the modern federal
    death penalty has been applied and yet chose not to attempt to
    introduce it during the sentencing hearings; this may indicate his
    lack of confidence in this evidence’s mitigating value.
         Webster contends that the district court erred in denying his
    motion for post-trial discovery on the issue of whether one of the
    case’s lead law enforcement investigators, Special Agent Floyd, had
    “purchased” the testimony of a prosecution witness, John Clay, by
    allowing a conjugal visit at a private residence in violation of
    agency guidelines.   Webster argues that if discovery had verified
    this claim, it would have impeached the testimony of Clay and
    Floyd, thus constituting grounds for a new trial.
         We review discovery rulings for abuse of discretion.   United
    States v. Dukes, 
    139 F.3d 469
    , 476 (5th Cir.), cert. denied, 119 S.
    Ct. 215 (1998); United States v. Johnson, 
    127 F.3d 380
    , 391 (5th
    Cir. 1997), cert. denied, 
    118 S. Ct. 1174
     (1998).          We will order a
    new trial based on discovery violations only where the party
    demonstrates prejudice to his substantial rights.          Dukes, 139 F.3d
    at 476.      To prevail, then, Webster must establish that “there is a
    reasonable probability that, had the evidence been disclosed to the
    defense, the result of the proceeding would have been different
    . . . .        [A] reasonable probability is shown where the non-
    disclosure 'could reasonably be taken to put the whole case in such
    a different light as to undermine confidence in the jury verdict.'”
    United States v. Visher, 
    106 F.3d 622
    , 634 (5th Cir. 1997) (quoting
    Westley v. Johnson, 
    83 F.3d 714
    , 725 (5th Cir. 1996), cert. denied,
    117 S. Ct. 773
         The government introduced testimony from Clay during the
    rebuttal portion of the penalty phase.             Clay, who had charges
    pending against him for drug dealing that included the possibility
    of a life sentence, was taken to the holdover cell on the second
    floor   of    the   federal   courthouse.   When    he   arrived   from   the
    Mansfield Correctional Enforcement Center, Webster was present in
    the holdover cell.        Webster then left and came back and began
    jumping around, saying that “there has got to be a God” because his
    trial had been set to a later day.          Clay testified that Webster
    also preached a thirty-minute sermon, “quot[ing] scriptures out of
    the Bible that has to be photographic in his mind because it was so
    accurate.” Clay and Webster conversed in “pig latin” after Webster
    started using it.       Clay demonstrated pig latin for the jury.
         Webster then told Clay about a “master mind plan” to arrange
    for each of them to have sexual contact with a female inmate by
    manipulating the visiting process.           Before the two men were taken
    back to Mansfield, Webster told Clay that he would write a letter
    to him in pig latin to explain the plan.          Webster in fact sent such
    a letter to ClaySSthe letter was introduced into evidence, with the
    defense stipulation        that   Webster   had   authored     it.   With    the
    prosecutor reading the letter, Clay interpreted some of the slang
         Clay also testified that he was cooperating with the govern-
    ment in hopes of a sentence reduction.                  Counsel for Webster
    questioned Clay about his criminal background and his current
    charges, and attempted to impeach Clay by implying that he was
    angry with Webster because Webster allegedly had written a letter
    to Clay’s girlfriend, who also was a prisoner at the Mansfield
    Correctional Center.
         Floyd     testified    during   the    penalty    phase   regarding    oral
    statements Webster made while in custody.             The statements included
    that killing Lisa Rene was “just business.”26
              Floyd also provided some of the testimony relevant to the admission of
          Approximately two months after trial and two days after filing
    a motion for new trial, Webster filed an addendum to his motion for
    new trial, setting forth an allegation from a local newscast that
    Floyd had permitted Clay to engage in a conjugal visit with Clay’s
    girlfriend after Floyd had taken Clay from the detention center for
    an unrelated investigation.        Webster alleged that this “reward” to
    Clay should have been reported to the defense pursuant to Brady v.
    373 U.S. 83
     (1963).        Webster asked the court to order the
    government to disclose any information that reasonably could be
    obtained      regarding     inducements     given   by   Floyd   to    Clay   and,
    specifically, that the government be ordered to disclose the
    results of any investigation relating to the matter.                  The govern-
    ment already had volunteered to provide the requested information
    to Webster, subject to confidentiality limitations.
          In its response to the motion for new trial, the government
    reaffirmed its continuing obligation and intention to disclose any
    mitigating or impeaching evidence.            The government further noted
    that it would work with Webster’s counsel to help them secure
    affidavits that had been filed in other cases in connection with
    the allegations. Webster then filed a motion in which he requested
    the court to
          order the attorneys for the government to produce and
    Webster’s confession. As discussed above, the district court properly denied the
    motion to suppress the confession; the questions Webster raises regarding Floyd’s
    credibility do not alter that determination.
         hand over to the defense counsel all information associ-
         ated with the activities of Special Agent Garrett Floyd
         of the Federal Bureau of Investigation that are related
         to the granting of inducements, favors, privileges,
         rewards, concessions or anything of value to any witness
         directly or indirectly associated with this instant case.
         This order should extend as well to any other case which
         is, or may be, a part of a systematic action on the part
         of Agent Floyd or other government actors to grant favors
         to witnesses in return for their testimony.
    Counsel for Webster acknowledged that he had received copies of the
    affidavits used in other cases involving the same allegation and
    that defense investigators were looking into other possible sources
    of information.
         In response to the motion for post-trial discovery, the
    government noted that the district court having jurisdiction over
    the cases in which this allegation had been made had determined
    that Floyd was unaware that Clay had had sexual contact while in
    Floyd’s custody and that a new trial was not warranted.                  The
    government asked the court to deny Webster’s post-trial motion
    because   the   motion   was   too   broad,   and   again   reiterated   its
    continuing discovery obligation.
         The court denied Webster’s motion, stating that even
         assuming that all of the facts asserted in [Webster’s]
         motion and the addendum are trueSSthat the Federal Bureau
         of Investigation Special Agent assigned with primary
         responsibility for investigating this case took federal
         prisoner John Clay from his detention facility, trans-
         ported him to the home of a female friend, and knowingly
         allowed Clay and the female to engage in sexual activi-
         ties, all in exchange for Clay’s testimony in this cause,
         and the prosecutor knowingly withheld this information
         from Defendant,
    the evidence was not material.         Citing United States v. Bagley,
    473 U.S. 667
    , 682 (1985), the court found that even if this
    information had been disclosed before trial, the result would have
    been the same.
         The court did not abuse its discretion in denying the motion
    for post-trial discovery.   Even assuming the allegations are true,
    they fail to undermine confidence in the verdict.    Clay was only
    one of many government witnesses who testified to rebut Webster’s
    claim of mental retardation, including school teachers, counselors,
    principals, employers, and detention center personnel.     Much of
    Clay’s testimony focused on the letter written by Webster’s own
    hand that set forth the “plan” for a sexual rendezvous with female
    inmates.   It is evident from the record that Webster concocted the
    elaborate scheme to manipulate the detention center’s visitation
    system and sought Clay’s assistance.   Clay’s other testimony could
    be redacted, and there would still be ample evidence to support the
    jury’s findings regarding Webster’s mental abilities.
         Furthermore, Clay admitted that he had testified in hopes of
    a reduced sentence, and the defense impeached his testimony with
    the allegation that Clay held a grudge against Webster.    Further
    impeachment via the possible quid pro quo of sex for testimony
    likely would not have affected more than marginally the weight the
    jury gave to Clay’s testimony.
           With respect to Floyd’s testimony, he too was only one of many
    witnesses who testified regarding Webster’s future dangerousness.
    Other   witnesses   included   Special      Agent   William   Eppright,    who
    testified that, on an occasion separate from the one testified to
    by Floyd, Webster said killing Lisa Rene was “strictly business.”
    Mohamed Ghene testified regarding Webster’s attempted robbery of
    his clothing store and the shots Webster fired at him from across
    the street.     Tlisha Booth presented testimony pertaining to a
    shoving match over a piece of candy.        Sylvia Henry, corroborated by
    a security guard and Booth, testified that Webster had assaulted
    her at a nightclub.      Pine Bluff Police Department Officer Lance
    Lawhorn testified that, while he was transporting Webster, Webster
    stated that if he was not in custody he would “kill the bitch” who
    gave him a venereal disease.        Even if Floyd’s testimony regarding
    Webster’s oral statements were redacted, the record provides ample
    evidence of future dangerousness.
           Moreover, any damage to Floyd’s credibility caused by these
    allegations would be mitigated by the finding of the district court
    with    jurisdiction   over   the   cases   where   the   allegations     were
    initially made that Floyd was unaware that Clay had any sexual
    contact while in his custody and that a new trial was not war-
    ranted.    There is no reasonable probability that the verdict would
    have been different had the jury known of the alleged Floyd-Clay
    incident, so the court did not abuse its discretion in denying
          Webster argues the district court lacked a statutory or
    constitutional (Fifth Amendment) basis to compel him to submit to
    a mental health exam by a government expert as a prerequisite to
    introducing his own expert psychiatric testimony.                We find no
          Although compelling Webster to a government psychiatric exam,
    the   court also granted, in part, Webster’s motion to limit the
    scope of the exam.      Specifically, the court barred examination of
    Webster’s future dangerousness.            The government’s witness, Dr.
    George Parker, however, testified that he found that Webster’s
    incarceration would lead to “a potentially very dangerous situa-
    tion.”     Webster argues this aspect of the testimony constitutes a
    Fifth Amendment violation.
          Webster’s argument falls well short of reversible error.
    First, he mischaracterizes the record.          There is no evidence that
    any government expert was asked to27 or did conduct an examination
    of Webster with regard to his future dangerousness.           The reports of
    Dr. Coons and Dr. Parker state that they had sufficient data to
    assess Webster’s future dangerousness without examination designed
             When first contacted and hired, before the court’s limiting order,
    Dr. Coons was informed that part of the exam would be for future dangerousness.
    But nothing in the record indicates that either Coons or Dr. Parker actually
    conducted an exam for future dangerousness.
    to uncover that.      Our reading of the record leads us to conclude
    that, contrary to Webster’s assertion, Coon’s testimony regarding
    Webster’s future dangerousness did not turn on an examination in
    violation of the court ordered limits.
          Second, Webster never objected on these grounds, so he failed
    to preserve the issue for appeal.          Finally, even if such testimony
    were given and properly objected to, the error of allowing the
    testimony proves harmless, because there is ample independent
    evidence to support a finding of future dangerousness.28
          The Hall panel avoided the question of statutory authority
    because it had not been properly briefed.              See Hall, 152 F.3d
    at 398.    We now face the issue and conclude that the district court
    had the authority to order the exam.
          A district court’s decisions in overseeing criminal discovery
    are entitled to great deference.             Alleged error is subject to
    review for abuse of discretion, and we will reverse only if a
    defendant establishes prejudice to substantial rights.                 Dukes,
    139 F.3d at 476; Johnson, 127 F.3d at 391.              Because the court-
             See Satterwhite v. Texas, 
    486 U.S. 249
    , 257-58 (1988) (citing numerous
    cases for proposition that constitutional errors in criminal trial are usually
    subject to harmless error review).
    ordered exam did not violate Webster’s constitutional rights, and
    he makes no other claim of prejudice, any finding of authority to
    order the exam negates prejudice to substantial rights.
          Although Webster correctly asserts that the court lacked
    statutory authority to order the psychiatric exam, a district court
    possesses inherent powers “reasonably useful to achieve justice,”
    In re Stone, 
    986 F.2d 898
    , 902 (5th Cir. 1993) (recognizing several
    categories of inherent court powers), including certain powers over
    the administration of civil and criminal discovery, Natural Gas
    Pipeline Co. v. Energy Gathering, Inc., 
    2 F.3d 1397
    , 1406 (5th Cir.
    1993).     In fact, FED. R. CRIM. P. 57(b) provides that where no law
    or rule is directly applicable, "[a] judge may regulate practice in
    any manner consistent with federal law, these rules, and local
    rules of the district."         The existence of the federal rules does
    not preempt this power, if the rules do not exclude the exercise of
    the specific putative inherent power.            Id. at 1407.29      Before the
    enactment in 1974 of FED. R. CRIM. P. 12.2, which establishes the
    procedures governing psychiatric exams at trial, numerous courts
    had recognized the existence of inherent judicial authority to
    order a defendant to give the government notice of a psychiatric
              See also United States v. Nobles, 
    422 U.S. 225
    , 236 (1975) (finding that
    FED. R. CRIM. P. 16 did not preempt an inherent power of the judiciary in criminal
    defense and to submit to examination by a government expert.30 This
    court, too, in other circumstances, has found inherent power to
    compel a psychological examination of a criminal defendant.31
          Acknowledging      that    a    district    court    has   such     inherent
    authority furthers the goals of the FDPA.                If the federal courts
    have supervisory authority to “formulate procedural rules not
    specifically required by the Constitution or the Congress” to
    “preserve    the   integrity     of   the    judiciary    by   ensuring    that a
    conviction rests on appropriate considerations validly before the
    jury,” United States v. Hastings, 
    461 U.S. 499
    , 505 (1983), that
    authority must extend to the sentencing phase of a trial as well.
          The FDPA provides, “[t]he government and the defendant shall
    be permitted to rebut any information received at the [sentencing]
    hearing, and shall be given fair opportunity to present argument as
    to the adequacy of the information to establish the existence of
            See, e.g., United States v. Albright, 
    388 F.2d 719
    , 722 (4th Cir. 1968);
    Pope v. United States, 
    372 F.2d 710
     (8th Cir. 1967) (en banc), rev’d on other
    392 U.S. 651
     (1968); Alexander v. United States, 
    380 F.2d 33
     (8th Cir.
    1967); Winn v. United States, 
    270 F.2d 326
     (D.C. Cir. 1959).
             See United States v. Cohen, 
    530 F.2d 43
    , 47 (5th Cir. 1976) (holding that
    court possesses inherent authority to order exam and admit psychiatric testimony
    regarding sanity at time of offense in conjunction with exam for competency to stand
    trial performed pursuant to 18 U.S.C. § 4244); United States v. Moudy, 
    462 F.2d 694
    697 (5th Cir. 1972) (same); accord United States v. Malcom, 
    475 F.2d 420
    , 424-25
    (9th Cir. 1973) (same); Gibson v. Zahradnick, 
    581 F.2d 75
    , 78 (4th Cir. 1978)
    (same); United States v. Green, 
    544 F.2d 138
    , 145 (3d Cir. 1976) (holding that court
    possesses inherent power to compel exam by own psychiatrist under 18 U.S.C. § 4244);
    United States v. Phelps, 
    955 F.2d 1258
    , 1263 (9th Cir. 1992) (inherent authority to
    compel psychiatric exam to determine whether release appropriate after verdict of
    not guilty by reason of insanity); United States v. Lewis, 
    53 F.3d 29
    , 35-36 n.9
    (4th Cir. 1995) (holding that court did not err in ordering psychiatric examination
    in light of defendant's stated intent to rely on claim of sub-normal intelligence
    in support of entrapment defense despite the technical inapplicability of rule
    any aggravating or mitigating factor, and as to the appropriateness
    in the case of imposing a sentence of death.”              § 3593(c).     Webster
    indicated his intention to present expert psychiatric testimony at
    the sentencing hearing.          The government would not have a “fair
    opportunity” to rebut that testimony if it could not conduct an
    examination of its own; and to ensure that the sentence rests on
    appropriate considerations, the government must have the opportu-
    nity to rebut the defense’s claims.32
          Allowing the court to require disclosure of the defendant’s
    experts’ reports and to compel the defendant to submit to a
    government psychiatric exam on the government’s motion constitutes
    a fair procedure for achieving these goals in a timely manner.                 Cf.
    FED. R. CRIM. P. 12 (establishing similar procedure for guilt-
    innocence phase).       The court had the inherent authority to order
    the exam, and, therefore, did not abuse its discretion.
          Webster’s first challenge relating to veniremen alleges that
    the court abused its discretion in granting the government’s Witt
    challenge of Linda Vicar.        A review of the record reveals that the
    court had sufficient grounds to grant the challenge.
            See Estelle v. Smith, 
    451 U.S. 454
    , 465 (1981) (noting that forbidding a
    government examination “may deprive the State of the only effective means it has of
    controverting [the defendant’s] proof on an issue that he has injected into the
          A court may excuse a prospective juror for cause because of
    his views on capital punishment if those views would prevent or
    substantially impair the performance of his duties as a juror in
    accordance with the instructions and oath.                Wainwright v. Witt,
    469 U.S. 412
    , 424 (1985); Williams v. Collins, 
    16 F.3d 626
    , 633
    (5th Cir. 1994).       Determination that a juror would automatically
    vote against the death penalty in every case is not the only
    situation in which that standard would require dismissal.                 Flores,
    63 F.3d at 1355.       The court has the discretion to excuse a juror
    when it “is left with the definite impression that a prospective
    juror would be unable to faithfully and impartially apply the law.”
    Id.   (quoting    Witt,   469   U.S.    at   426).     We   give   considerable
    deference to the decision to excuse a juror on this basis, because
    such decisions are based on face-to-face credibility assessments.33
             See Flores, 63 F.3d at 1355; see also Witt, 469 U.S. at 426-29 (although
    in habeas context, discussing universal reasons for deference); United States v.
    991 F.2d 171
    , 174 (5th Cir. 1993) (decision to excuse juror for actual bias
    reviewed for manifest abuse of discretion).
          Webster’s argument focuses on Vicar’s statements that she
    believed capital punishment was a deterrent to crime and that “the
    possibility is there” that situations existed in which she could
    impose a death sentence.            Based on this, Webster believes her
    ability to perform her duties as a juror was not impaired.
          Other excerpts, however, support the government’s concern and
    the court’s decision.         Vicar stated, “I mean from one day to the
    next, I don’t have the same opinion of what I could do.                  I think
    there could be, depending on what the situations were, that I could
    say, yes, that’s what it should be, that’s what the penalty should
    be.   I don’t consistently, from day to day, think I could actually
    do that if there really is a life sentence.”
          Indeed, in answering several questions, Vicar wavered on
    whether she could sentence a defendant to death if a life sentence
    without parole option were a viable alternative.34             The government,
               During questioning by the government, Vicar gave the following answers:
          A.      I guess it’s not something that I have ever wanted to do.
                  I guess I have debated since we filled out that questionnaire
                  whether I could really do it or not, but that doesn’t say
                  I don’t think it’s necessary. I guess I asked the question
                  this morning about whether we really had a life sentence that
                  were truly without parole or any chance of getting out.
                  I don’t know if I could tell you at this time whether I could
                  make a decision for the death penalty orSSI mean, I don’t know
                  if I could sit here and tell you today whether I could really
                  do that or not. That’s why I had the questions I had this
                  morning about whether if you’re telling me there really is a
                  life sentence without parole, if that is really true, if you
                  tell me in the courtroom that there is that option.
          Q       . . . knowing that a person you might convict of an offense
    in objecting to Vicar, pointed to her demeanor, her long pauses
    before answering questions, and her admission of equivocation.
    Although she stated she could envision circumstances in which she
    might be able to impose a death sentence, the presence of the
    alternative of a life sentence without parole raised serious
    questions about her ability to follow the law.               In addition, the
    whole of her testimony could have left the court with the impres-
    sion that she favored the death penalty as a theoretical necessity,
    but would not be able to recommend it.          The court did not abuse its
    discretion     in   granting    the   challenge    for   cause    for   Vicar's
    inability to apply the death sentence.
                 like this is never going to be released, ever, period, and
                 he’s going to be in prison for the rest of his life, that
                 realistically you could never vote for the death penalty, then
                 you really need to let us know that now, okay?
         A.      I guess I feel likeSSsince there is that other option, I’m not
                 sure.   I thought before that I could vote for the death
                 penalty, but I don’t really know, if it came right down to it,
                 if I could do it or not. I’m not saying that I could not.
                 I guess a lot of it would just have to do with the facts of
                 the case. I don’t know if I could do it or not. I couldn’t
                 tell you that I know I could or that I know I couldn’t.
         Q.      . . . Why do you feel that would be such a           problem?
                 Realistically, why do you feel that’s a problem?
         A.      I guess I’m just torn between the fact of whether I thought
                 there were cases that I have heard of that I thought that’s
                 exactly what they deserved, but whether I couldSSwhether that
                 decisionSSI guess whether it conflicts with my religious
                 beliefs, whether that decision should really be up to me or
                 not. I don’t know if I could make that decision or if I could
                 be guaranteed that person would be in prison for life.
                 I guess it’s probably primarily justSSjust something within
                 myself that I don’t know if I could do it or not, because
                 I might think that person deserved exactly that, but whether
                 I should be the one here on earth to make that decision.
         Webster avers that the court abused its discretion in denying
    several of his challenges for cause.        He challenged veniremen
    Deanna Hailey and Carolyn Coffelt on the ground that they stated
    that if they found Webster guilty of the primary offense of
    kidnaping resulting in death, they would have to answer “yes” to
    the statutory aggravating factor that the defendant caused the
    death of the victim during a kidnaping.     Webster challenged Jimmy
    Chambless, Kristi Magouirk, and David Hoffman because all allegedly
    were biased in favor of finding him guilty during the guilt-
    innocence phase.      The court denied these challenges, forcing
    Webster to use peremptory challenges in all five cases.       He now
    says the denial of his for-cause challenges was an abuse of
    discretion.    We disagree.
         The Sixth Amendment right to a fair trial includes the right
    to an impartial jury.         Morgan v. Illinois, 
    504 U.S. 719
    , 727
    (1992).    In a capital sentencing context, there is the right to
    challenge for a cause a juror whose views on capital punishment
    would “prevent or substantially impair the performance of his
    duties as a juror in accordance with his instructions and his
    oath.”    Witt, 469 U.S. at 424 (quoting Adams v. Texas, 
    448 U.S. 38
    45 (1980)).    The government has the right to challenge for cause
    those veniremen whose views in opposition to the death penalty will
    substantially impair their duty.         Id.   As a corollary, the capital
    murder defendant has a right to challenge for cause any juror who
    will automatically vote for the death penalty in every case,
    because that juror “will fail in good faith to consider the
    evidence    of   aggravating    and   mitigating     circumstances     as   the
    instructions require him to do.”           Hall, 152 F.3d at 407 (quoting
    Morgan, 504 U.S. at 729).
          Although Webster complains that the failure to grant his
    challenges for cause forced him to exhaust his peremptory chal-
    lenges and, after running out, to take objectionable jurors, he
    does not allege that any of the jurors who served was not impar-
    tial.35 We do not face, therefore, a pure constitutional challenge.
    Cf. id. at 407-08.36     Rather, we address Webster’s statutory right
    to the free exercise of his peremptory challenges as a means of
    implementing the constitutional guarantees.
          “While peremptory challenges, or the number provided by FED.
    R. CRIM. P. 24(b) may not be constitutionally required, it does not
    follow that a trial court’s wrongful reduction of the number so
            Webster asserts, without substantiation or explanation, only that he was
    forced to take several “questionable” jurors.
             The failure properly to grant a challenge for cause rises to the level
    of a constitutional violation and warrants reversal only “if the defendant
    exhausts all peremptory challenges and an incompetent juror is forced upon him.”
    Ross v. Oklahoma, 
    487 U.S. 81
    , 89 (1988). Absent such a showing, the defendant
    has not been denied his Sixth Amendment right to an impartial jury. Webster has
    made no claim of incompetent jurors.
    provided is not reversible error on direct appeal.”              United States
    v. Munoz, 
    15 F.3d 393
    , 395 n.1 (5th Cir. 1994).37              “'The denial or
    impairment of the right to exercise peremptory challenges is
    reversible error without a showing of prejudice.'”              Hall, 152 F.3d
    at 408 (quoting United States v. Broussard, 
    987 F.2d 215
    , 221 (5th
    Cir. 1993)).     Because the district court’s predominant function is
    determining the credibility of the veniremen, however, “deference
    must be paid to the trial judge who sees and hears the prospective
    juror.”    Id. at 407 (quoting Witt, 469 U.S. at 426).           “We will only
    second-guess the court’s decision that a juror is unbiased if there
    is an abuse of discretion.”        Id. (quoting Flores, 63 F.3d at 1357).
          Webster contends that the court should have granted his
    challenge to Deanna Hailey because she automatically would answer
    “yes” to one of the statutory aggravating factors if she had found
    him guilty.      Specifically, Hailey said that if she had found a
    defendant guilty of an intentional kidnaping that results in death,
    she   always    would    find   the    statutory    aggravating      factor    of
    § 3592(c)(1) to be true—that the defendant had caused the death
            See also United States v. Nell, 
    526 F.2d 1223
    , 1229 (5th Cir. 1976) (“[A]s
    a general rule it is error for a court to force a party to exhaust his peremptory
    challenges on persons who should be excused for cause, for this has the effect of
    abridging the right to exercise peremptory challenges.”).
    during the commission of the offense.38
         This, Webster argues, runs afoul of Morgan, because Hailey
    would fail to consider additional evidence before finding the
    statutory factor.       In addition, Webster claims, Congress, when it
    provided the aggravating factor, must have contemplated a juror's
    consideration of something more than or different from the evidence
    at trial; otherwise, the aggravating factor would be superfluous.
    We disagree; the court did not abuse its discretion in finding
    Hailey unbiased and capable of serving.
         First, Morgan does not apply here; it holds that a juror
    should be excused if a finding of guilt automatically would lead
    him to recommend a sentence of death.         See Morgan, 504 U.S. at 729.
    The instant alleged error is a far cry from that in Morgan.            The
    problem of which Webster complains is that a finding of guilt
    automatically would lead to the finding of an aggravating fac-
    tor—not to a recommendation of death.           An automatic finding of an
    aggravating factor in no way runs afoul of Morgan’s requirement
    that a juror appears able to “consider the evidence of aggravating
    and mitigating circumstances as the instructions require him to
    do,” id., because the automatic finding of an aggravating factor is
    not the same as an inability to consider aggravating and mitigating
    circumstances.       A juror could find the aggravator of kidnaping
    resulting in death and yet determine that the mitigating factors
              Hailey actually answered the question, “Yes, I guess so.”
    outweigh that and other aggravating factors, sparing the defen-
    dant’s life.39
          Second, as we held in Jones and Hall, allowing a juror, having
    already found the existence of a certain set of facts beyond a
    reasonable doubt during the guilt-innocence phase, to answer “yes”
    to an aggravating factor based on the same facts does not raise
    constitutional problems.         See Hall, 152 F.3d at 416-17; Jones,
    132 F.3d at 248-49.      Indeed, it merely allows the jury to consider
    the facts or elements of the offense as an aggravating factor that,
    having already been found beyond a reasonable doubt, it then
    weighsSSjust     onceSSin   determining      whether    to   return    a   death
    sentence.    Allowing the factor to be weighed does not violate the
    narrow strictures of Morgan, even if a juror believes the finding
    of guilt automatically leads to a finding of the factor.
          Finally, Hailey answered Webster’s hypothetical questions in
    ignorance of the law the court would instruct her to apply.
    Contrary to Webster’s assertion, she did not implicitly say she
    would not follow instructions; to the contrary, she stated that she
    would be able to follow the instructions and procedures.                     The
    court did not abuse its discretion in finding that she would obey
    those instructions when informed how to determine the existence of
             Cf. United States v. McVeigh, 
    153 F.3d 1166
    , 1206-08 (10th Cir. 1998)
    (giving Morgan a narrow reach by holding that court need not allow the defense to
    ask veniremen Morgan-type questions that include consideration of facts and
    circumstances beyond a mere finding of guilt automatically leading to a
    recommendation of death under the FDPA).
    aggravating factors.40
          Webster finds error in the denial of his challenge for cause
    to venireman Carolyn “Kay” Coffelt.               Webster believes Coffelt
    should have been excused for the same reason as for Hailey,
    although      Coffelt    more   ambiguously     answered     that    she   would
    automatically find the first aggravating factor after finding
    guilt.41 Coffelt also explicitly stated she would be able to follow
    the instructions and knew there was nothing automatic in assessing
    the death penalty. For the reasons given above, the district court
    did not abuse its discretion.
          Webster claims the court should have granted his challenge for
    cause of venireman Jimmy Chambless because he was predisposed to
    find Webster guilty.         Chambless, on his own initiative, informed
    the court that he had been exposed to pre-trial publicity, “and
    what little I know about this, . . . I’m already leaning towards
    the prosecution . . . .          That’s not saying I couldn’t be swayed
    with the evidence and everything that could come up, but I have got
            See Hall, 152 F.3d at 410-11 (statements in ignorance of law combined with
    affirmation that venireman will follow instructions allows district court to find
    venireman competent).
               Coffelt answered, “Possibly.”
    to be honest at this point, the defense is not starting even with
    the prosecution.”
         He also stated he leaned toward the prosecution because
    Webster had been arrested, and “if someone was arrested for this,
    I feel like there was a reason for it . . . .    I feel like there
    was probably a good reason they were arrested. I’m not saying that
    I couldn’t, again, be swayed . . . .”   Based on these statements,
    Webster believes Chambless should have been excused for cause
    because he was predisposed to find an arrested defendant guilty and
    would shift the burden of proof onto the defense.      We disagree;
    other statements Chambless made demonstrate the court did not abuse
    its discretion in denying the for-cause challenge.
         When questioned by the court, Chambless agreed the verdict
    must be based on the evidence presented in the courtroom, and
    believed he could limit himself to such evidence.   He affirmed that
    the prosecution carries the burden of proving guilt beyond a
    reasonable doubt, and would require as much with respect to every
    element.   He also believed he could give a fair trial to both the
    defense and the prosecution, putting his predisposition aside. The
    court found him credible in making these statements and denied the
    challenge for cause.
         “A person is not automatically rendered unqualified to serve
    as a juror merely because he has been exposed to media coverage of
    the charged crime. The issue becomes whether exposure to the media
    publicity will preclude the individual from returning a verdict
    based solely on the person’s application of the law as stated to
    the evidence presented.”        Hall, 152 F.3d at 411 (quoting Bell v.
    828 F.2d 1085
    , 1093 (5th Cir. 1987)).                We “decline to
    second-guess the district court’s determination, made after face-
    to-face credibility       assessment    and   thorough    questioning,     that
    [Chambless] could faithfully follow the court’s instructions and
    reach a verdict based solely upon the evidence presented at trial.”
            See also Bell, 828 F.2d at 1093 (holding that court properly declined to
    strike venireman for cause in similar circumstances, where pre-trial publicity
    predisposed venireman to find guilt).
          Webster contends the court should have granted his challenge
    for cause of venireman Kristi Magouirk for a demonstrated bias
    against him, an inability to provide a presumption of innocence or
    to follow the instructions not to listen to news reports.               During
    voir dire, Magouirk admitted, “I guess I’m more prone to look for
    evidence to convict rather than evidence not to convict, reasonable
    doubt.”    She later claimed not to be prone to convict, but “I feel
    like the government must a have good evidence to have this person
    on trial.”      She expressed her view that black men “have a grudge
    against me and my race” but asserted that that feeling would not
    affect her decision.           She also stated, “I am all for the death
    penalty.      I would just as soon see them die for their crime than to
    live out their life on my taxes”; but she explained that she could
    recommend a life sentence without parole.
          Furthermore,       she   later   reiterated    her   preconceptions     of
    evidence of guilt because “if the person is charged, they must have
    good evidence.”        She said, “I would like to give him a clean slate.
    It’s just that, to be honest, yes, it’s hard because he’s here
    . . . .    So there has got to be something against him.”             She also
    recounted news stories on the crime from as recently as the
    previous day.        It “would be pretty hard” for her not to discuss the
    case with her husband and not to keep up with the press accounts.
    Despite Webster’s claims that Magouirk showed bias and an inability
    to   follow    the    instructions,    the   court   deemed   her   capable   of
    serving.     We decline to second-guess that determination.
         The decision is supported by ample evidence that, combined
    with the court’s assessment of Magouirk's credibility, justifies
    its refusal to dismiss her for cause.         As explained, knowledge of
    the case from news accounts does not preclude service, and Magouirk
    agreed she would follow the instructions to avoid the news, assume
    anything she heard outside the courtroom was false, and base her
    decision solely on the evidence.          She recognized that the govern-
    ment carried the burden of proving guilt beyond a reasonable doubt.
    She stated, “I guess, since I haven’t heard any evidence, I don’t
    have anything against him.        So to me he is innocent.   Until I hear
    the facts, then he is innocent, yes.”         She affirmed that she would
    follow her oath as a juror and the court’s instructions, including
    not discussing the case with her husband.         The court acted within
    its discretion.
         Webster claims error in the refusal to grant his challenge for
    cause   to   venireman   David    Hoffman.     Webster   believes   Hoffman
    demonstrated bias resulting from Webster's being charged with the
    offense and an inability to separate the victim from thoughts of
    Hoffman's own daughter.          Hoffman testified that, based on news
    accounts, he believed a girl named Lisa Rene was kidnaped, taken to
    Arkansas, and murdered, even though those were the elements the
    government would have to prove.           Recognizing the government had
    brought charges, he admitted, “I guess for that reason alone I
    would have to say that there’s a certain bias there, or else he
    wouldn’t be here.”       Hoffman also stated that he might find it
    difficult to “wall off” thoughts of his daughter during sentencing,
    and they might affect his vote “to a certain extent.”
         Hoffman said, however, “I believe that I would be able to
    force [thoughts of my kids from my mind] and weigh purely on the
    evidence there.”43    He stated his view that much information coming
    from the media proved false.         He believed he could keep an open
    mind, follow his oath as a juror, and base his verdict and sentence
    recommendation on the evidence and law.
         A juror need not, and indeed cannot, leave his experiences and
    circumstances outside the jury room.          What he must do is base a
    decision solely on the evidence presented, as seen in a fair and
    unbiased manner through the lens of his experiences.           The district
    court found Hoffman excruciatingly honest, but dedicated to and
    capable of overcoming any difficulties he might have as a juror.
    On this cold appellate record, we cannot find that determination an
    abuse of discretion.
             Hoffman demonstrated both the difficulty and, ultimately, his ability
    to make a decision based on the evidence and not on his feelings for his
         Where I feel that I would have a harder time at that—walling that
         off—is if a guilty verdict is determined and sentencing begins.
         I would still, again, look at the individual evidence itself and
         weigh all the circumstances, but just being a human being, I have
         experiences and feelings, and that’s what makes us all individuals,
         of course, and those feelings for my children would probably end up
         coming out in some form in the sentencing.
         Before the jury retired for deliberations at the penalty
    phase,   the   court   excused    one    of   the   jurors   and   elevated   an
    alternate to replace him.        Webster alleges the court erred, but we
         Webster styles the claim of error as an abuse of discretion in
    not granting a mistrial.     We review a refusal to grant a mistrial
    for abuse of discretion.     United States v. Willis, 
    6 F.3d 257
    , 263
    (5th Cir. 1993).       But Webster moved for a mistrial because the
    court had substituted an alternate juror allegedly after the jury
    had retired to consider its verdict.            Under FED. R. CRIM. P. 23(b)
    and 24(c), we review a decision to substitute jurors at that late
    stage for prejudice.      United Stated v. Huntress, 
    956 F.2d 1309
    1316 (5th Cir. 1992); United States v. Helms, 
    897 F.2d 1293
    (5th Cir. 1990).
         During the punishment phase, but before the jury had begun
    deliberations, the court excused juror Charles Fox after he came to
    court in severe pain from an automobile accident.             After extensive
    discussion with counsel for the defense and prosecution, the court
    decided to substitute Fox with an alternate juror, Christopher
    Rawlinson.   Rawlinson had sat through the guilt-innocence phase
    but had neither participated in nor observed those jury delibera-
    tions; he also sat through the penalty phase testimony.              Webster
    moved for a mistrial and objected to using an alternate juror; the
    court ruled against him. In the sentencing phase charge, the court
    instructed the jurors, “As you will recall, a member of the jury
    which returned the verdict in the guilt phase of the trial was
    excused for health reasons.     An alternate juror was substituted in
    his place.   You are instructed that this substituted juror shall
    not be treated any differently than any other juror during your
         Webster admits the propriety of dismissing Fox. In fact, that
    decision   falls   soundly   within    the   court’s   discretion:     “The
    district court has the discretion to remove a juror 'whenever the
    judge becomes convinced that the juror’s abilities to perform his
    duties becomes impaired.'”      United States v. Leahy, 
    82 F.3d 624
    629 (5th Cir. 1996) (quoting Huntress, 956 F.2d at 1312).            Webster
    complains only of the lack of authority to replace Fox with an
         The court presented the parties with three alternatives:
    continue with eleven jurors, impanel an alternate, or declare a
    mistrial and impanel a new jury.       The court observed that “the law
    isn’t real clear” on how to proceed.         The prospect of repeating the
    entire penalty phase hearing made the last alternative highly
    unattractive, although that is the alternative Webster urged; he
    would not stipulate to an eleven-member jury.
         If this had taken place before the jury retired at the guilt-
    innocence phase of the trial, the answer to the question would be
    simple, for rule 24(c) provides that “alternate jurors in the order
    in which they are called shall replace jurors who, prior to the
    time the jury retires to consider its verdict, become or are found
    to be unable or disqualified to perform their duties.” Rule 24(c)
    also states, however, that all alternate jurors who have not
    replaced a regular juror “shall be discharged after the jury
    retires to consider its verdict.”          Id.
         When a juror is disqualified after the jury retires, on the
    other hand, the court has the authority to require the jury to
    proceed to verdict with only eleven members, with or without
    stipulation by the parties, and this should be done particularly in
    lengthy and complicated trials.44         We have explained our justifica-
    tion for proceeding with eleven jurors instead of substituting an
         An alternate juror replacing a regular juror after the
         jury has commenced its deliberations may be unable to
         participate equally with the other jurors, because he
             See FED. R. CRIM. P. 23(b); Huntress, 956 F.2d at 1317 (“We wish to
    emphasize that district judges in this circuit should follow Rule 23(b) rather
    than substitute alternate jurors when a juror is excused after deliberations
          will lack the benefit of prior deliberations. There is
          a danger that the other jurors will have already formu-
          lated positions or viewpoints or opinions in the absence
          of the alternate juror and then pressure the newcomer
          into possibly ratifying this predetermined verdict, thus
          denying the defendant the right to consideration of the
          case by twelve jurors.
    United States v. Quiroz-Cortez, 
    960 F.2d 418
    , 420 (5th Cir. 1992).
          The complication in the instant case, of course, is the
    bifurcated trial. The FDPA provides that if the defendant is found
    guilty, the court
          shall conduct a separate sentencing hearing to determine
          the punishment to be imposed.     The hearing shall be
          (1) before the jury that determined the defendant’s guilt;
          (2) before a jury impaneled for the purpose of the hearing
                (C)    the jury that determined the defendants guilt
                       was discharged for good cause
                . . . .
          A jury impaneled pursuant to paragraph (2) shall consist
          of 12 members, unless, at any time before the conclusion
          of the hearing, the parties stipulate, with approval of
          the court, that it shall consist of a lesser number.
    § 3593(b).45      How should a court apply rules 23 and 24, if at all,
             This language allowing for the parties to stipulate to a jury of less
    than 12 members is similar to former rule 23(b), which did not allow the court
    to order the case to proceed even absent stipulations.         Before changes to
    rule 23(b) in 1983, caselaw allowed a court to substitute an alternate juror even
    when deliberations had begun, if the parties refused to stipulate to a jury of
    fewer than 12 members. See United States v. Phillips, 
    664 F.2d 971
    , 996 (Former
    5th Cir. Dec. 1981); FED. R. CRIM. P. 23(b), advisory committee note. In such a
    case, the defendant had to show he was prejudiced by the use of the alternate
    juror. See Huntress, 956 F.2d at 1316.
    when the jury has returned from deciding one verdict but has yet to
    retire to consider the second?     This presents an issue of first
         The Federal Rules of Criminal Procedure apply to sentencing
    hearings; FED. R. CRIM. P. 1 provides, “These rules govern the
    procedure in all criminal proceedings in the courts of the United
    States . . . .”     Rule 54, FED. R. CRIM. P., excludes certain
    proceedings, but not sentencing hearings.    Section 3593(c) waives
    rule 32(c)’s presentence report requirement, which suggests the
    negative implication that the Rules of Criminal Procedure usually
    do apply to sentencing hearings under the FDPA. The district court
    correctly looked at rules 23 and 24, therefore, in deciding what to
    do after excusing Fox.   But how should a court apply these rules in
    light of the fact that they fail to contemplate a bifurcated
         If, hypothetically, the entire jury had been discharged for
    good cause after returning its guilty verdict, the court would have
    impaneled an entirely new one pursuant to § 3593(b)(2).     Presum-
    ably, that jury would have included alternates.   If the court then
    had discharged a juror for cause before the jury had retired to
    consider the sentence, would the court have been entitled to
    elevate an alternate?     Rule 24(c) answers in the affirmative
    (alternate “shall replace” juror excused before jury retires).
         The superficial conclusion, then, is that the court has the
    same authority to impanel an alternate when the same jury sits for
    both phases of the trial.        And this conclusion answers Webster’s
    primary contention:       Because an alternate was available and the
    jury had not retired to deliberate on its sentence recommendation,
    the court had the authority, under rule 24(c), to elevate the
           The answer, unfortunately, is not so facile, for rule 24(c)
    also provides, “An alternate juror who does not replace a regular
    juror shall be discharged after the jury retires to consider its
    verdict.”       This mandatory language appears to compel the court to
    dismiss the alternate jurors once the jury retires at the end of
    the first phaseSSwhen the jury first retires to consider its
    verdict.       If the court were to follow this mandatory language, no
    alternates would remain to be substituted for jurors whom the court
    might have to discharge before the end of the second phase.46                In
    fact, the court dismissed three of the five alternate jurors; the
    remaining two were retained for the penalty phase of the hearings.
           The court erred in not dismissing the juror at the end of the
    first phase.       The mandatory language of rule 24(c) requires the
    court to dismiss the alternates when the jury retires to deliber-
    ate.        This conclusion adheres faithfully to the language of the
           Nevertheless, we affirm the sentence.         Webster did not object
             Webster points out that when the jury was first impaneled, the court
    instructed that “once the deliberations begin, we will dismiss any alternate who
    has not been seated as a primary juror.”
    to the failure to dismiss the alternates at the time; he complained
    only of elevating an alternate to the jury and not granting a
    mistrial.47     Because the jury had not retired when the court
    dismissed Fox and substituted Rawlinson, any available alternate
    could be elevated consistent with the rule.              Webster, therefore,
    waived the objection he should have madeSSthe failure to dismiss
    the alternates.       When the defendant has waived an objection for
    failure to follow the substitution rules, an error alone does not
    warrant reversal; we also review for prejudice from the resulting
    elevation of the substitute.48
          Webster did not suffer prejudice. The court provided the jury
    with an instruction to include the new juror equally in all
    deliberations.     Furthermore, the jury had not started deliberating
    at the penalty phase.           Those issues were distinct from those
    decided at the guilt-innocence phase; any overlap is irrelevant,
    because the jury specifically was instructed to consider everything
    as if for the first time.       Interestingly, on the sole penalty phase
    issue as to which prejudice seems possible, which is in the first
    aggravating factor that overlapped with the offense decided in the
    first phaseSSkidnaping in which death resultsSSthe jury failed to
             On appeal, Webster focuses on the same complaint.    In some places,
    however, he mentions the failure to dismiss the alternates when deliberations
    began at the guilt-innocence phase.
            See Huntress, 956 F.2d at 1316-17 (holding that failure to make the proper
    objection to violation of juror rules leads to review for prejudice in the
    find the aggravating factor. Webster’s generic claims of prejudice
    fail, as there is nothing inherently prejudicial in a rule 24(c)
    violation.   See Huntress, 956 F.2d at 1316 n.7.
         Webster contends that the court erred in excusing juror Urbano
    Gomez on learning that, in response to the juror questionnaire, he
    had not disclosed past encounters with the judicial system.   At the
    very least, Webster claims, the court erred by not recalling Gomez
    to ask him further questions.   We conclude the court acted within
    its discretion by dismissing Gomez, even absent further questioning
    to determine whether he had lied.
          After the court qualified Gomez as a juror, the prosecutor
    notified the court that it had uncovered a criminal record for him.
    The government challenged Gomez for cause because he had not
    answered his questionnaire truthfully.             The government presented
    evidence that Gomez had been charged with shoplifting and spent
    three days in county jail, had been convicted of aggravated assault
    on a police officer and received one month of confinement,49 and had
    been convicted of aggravated assault with a deadly weapon for which
    he received five years' probation.           None of these was mentioned in
    Gomez's answer to the questionnaire.50 Over defense objections, the
    court dismissed Gomez for providing false information, without
    recalling him for questioning.
          The court has discretion to excuse an untruthful juror.51                The
             The parties agree this must have been pled down to some lesser offense,
    given the punishment.
             The most evident problem is with the response to Question 73, “Have you or
    a relative been convicted of any offense other than a traffic ticket?” Gomez
    checked “Yes,” and under “details” noted “brother-in-law, child abuse.” Five other
    questions were answered inaccurately, given Gomez's record of arrests, convictions,
    and probation.
             United States v. Fryar, 
    867 F.2d 850
    , 853 (5th Cir. 1989); United States
    v. Coleman, 
    997 F.2d 1101
    , 1105 (5th Cir. 1993) (“A trial judge may 'remove a juror
    whenever the judge becomes convinced that the juror’s abilities to perform his
    duties have become impaired.'”) (quoting United States v. Dominguez, 
    615 F.2d 1093
    1095 (5th Cir. 1980)). Webster argues that mere abuse of discretion review provides
    insufficient protection to a capital defendant and that the heightened need for
    reliability in capital cases should compel us to examine errors with greater
    scrutiny. He provides no authority for this claim, and we see no reason to depart
    scope of the examination, if any, into juror misconduct rests
    within the court’s sound discretion.            Fryar, 867 F.2d at 854.52        We
    will not disturb the court’s findings on this issue except for want
    of factual support.          Coleman, 997 F.2d at 1105.          No evidentiary
    hearing is necessary.           Id. (holding that court properly excused
    juror after government informed court that juror had failed to
    disclose he had been subjected to two ATF investigations).                       In
    light of the deferential standard, the court acted within its
    discretion in granting the challenge for cause.
          Webster argues the court erred in denying his Batson motion,
    objecting to the government’s use of peremptory challenges on black
    veniremen.       We find no clear error in the court's acceptance of the
    government's non-racial justifications for the strikes.
          After voir dire, the court presented the parties with a list
    of sixty potential jurors, of whom five were black and one was
    Asian.53       Each side exercised its twenty challenges.                 Webster
    from the ordinary standard of review.
             See also Rosales-Lopez v. United States, 
    451 U.S. 182
    , 189 (1981) (district
    court has broad discretion in determining how best to conduct voir dire).
                There also were several hispanics whom the government did not strike.
    objected to the government’s strikes eliminating the Asian and the
    five blacks. To establish his prima facie case of racial discrimi-
    nation, Webster relied solely on the fact that the government had
    stricken all black jurors.     The court questioned whether this made
    out a prima facie case, but nonetheless called on the government to
    provide rationales for its strikes.
         The government provided race-neutral rationales.             Webster
    filed a motion disputing those reasons for each of the black
    jurors.54    Webster argued the reasons were a pretext and that the
    prosecution did not strike other similarly-situated jurors who were
    not black. The government filed a response explaining why it found
    the jurors Webster claimed to be similarly situated were in fact
         The court entered an order denying Webster’s Batson motion,
    finding that (1) the motion was untimely; (2) Webster had failed to
    make out a prima facie case; (3) the government’s race-neutral
    reasons were believable; and (4) Webster had failed to prove
    purposeful discrimination.      We affirm on the latter two grounds.
         “The use of peremptory challenges to exclude veniremen 'solely
    on account' of race violates the equal protection component of the
             Webster conceded a legitimate reason existed for the Asian jurorSS
    difficulty with the English language.
    due process clause of the fifth amendment.”          United States v.
    Terrazas Carrosco, 
    861 F.2d 93
    , 94 (5th Cir. 1988). Courts address
    Batson claims under the familiar burden-shifting scheme.           See
    Batson v. Kentucky, 
    476 U.S. 79
    , 96-97 (1985); United States v.
    72 F.3d 1200
    , 1206 (5th Cir. 1996).      “The Supreme Court has
    outlined a three-step process for determining whether peremptory
    strikes have been applied in a discriminatory manner.       First, the
    claimant must make a prima facie showing that the peremptory
    challenges have been exercised on the basis of race.        Second, if
    this requisite showing has been made, the burden shifts to the
    party   accused   of   discrimination   to    articulate   race-neutral
    explanations for the peremptory challenges.         Finally, the trial
    court must determine whether the claimant has carried his burden of
    proving purposeful discrimination.”          United States v. Bentley-
    2 F.3d 1368
    , 1373 (5th Cir. 1993); see also United States v.
    76 F.3d 638
    , 640-41 (5th Cir. 1996).        The party making the
    claim of purposeful discrimination bears the ultimate burden of
    persuasion.   Bentley-Smith, 2 F.3d at 1373.
         We assume, arguendo, that Webster timely made his Batson
    motion and that he made a prima facie case.        The court called on
    the government to provide race-neutral justifications for the use
    of its peremptory strikes.   Once a court has taken that step, we no
    longer examine whether a prima facie case exits.55                 Our decision,
    then, must rest on (1) whether the government articulated race-
    neutral    explanations      for   the   exercise    of    its   challenges    and
    (2) whether Webster has demonstrated that those justifications are
    pre-textual and that the government engaged in purposeful discrimi-
          Unless a discriminatory intent is inherent in the explanation,
    the reason offered should be deemed race-neutral.                       Hernandez,
    500 U.S. at 360 (plurality). “[T]he ultimate inquiry for the judge
    is not whether counsel’s reason is suspect, or weak, or irrational,
    but whether counsel is telling the truth in his or her assertion
    that the challenge is not race-biased.”                Bentley-Smith, 2 F.2d
    at 1375.    The “race-neutral explanation tendered by the proponent
    need not be persuasive, or even plausible.”               Huey, 76 F.3d at 641;
    see also Purkett v. Elem, 
    514 U.S. 765
    , 767-68 (1995).                  It simply
    must be race-neutral and honest.               Determining whether counsel
    speaks the     truth    in   offering    its   reasons     turns   on   in-person
             See United States v. Boussard, 
    987 F.2d 215
    , 221 (5th Cir. 1993)
    ("appellate review should not become bogged down on the question of whether the
    defendant made a prima facie showing in cases where the district court has required
    an explanation")(citing United States v. Forbes, 
    816 F.2d 1006
    , 1010 (5th Cir.
    1987)); see also Hernandez v. New York, 
    500 U.S. 352
    , 359 (1991) (plurality) (“Once
    a prosecutor has offered a race-neutral explanation for the peremptory challenges
    and the trial court has ruled on the ultimate question of intentional
    discrimination, the preliminary issue of whether the defendant had made a prima
    facie showing becomes moot.”).
    credibility assessments, so we review for clear error.                          Huey,
    76 F.3d at 640-41; Fields, 72 F.3d at 1206.
          The government offered reasons for excusing each of the five
    jurors, with concerns ranging from a juror's establishing a rapport
    with defense counsel to a fear that none of the five would be able
    to   recommend    a   death    sentence     when   the    time   came,   and    from
    relatives with criminal records to relatives living in the city
    where the murder took place. The court accepted and believed these
    explanations.     Having reviewed the record, we cannot say the court
    clearly erred.
          At the third stage of the inquiry, Webster bears the burden of
    establishing that the government engaged in “purposeful discrimina-
    tion” based on race.          Purkett, 514 U.S. at 767; Bentley-Smith,
    2 F.3d at 1373 (“The ultimate burden of persuasion always lies with
    the party making the claim of purposeful discrimination.”).                      The
    “[p]roof of      racially     discriminatory       intent   or   purpose    .    . .
    'implies more than intent as volition or intent as awareness of
    consequences.         It implies that the decision maker selected a
    particular course of action at least in part because of, not in
    spite of, its adverse effects upon an identifiable group.'” United
    States   v.   Garcia,    
    1 F.3d 330
    ,    335   (5th   Cir.   1993)     (quoting
    Hernandez, 500 U.S. at 360).          Webster fails to meet this burden.
          Webster offers no direct evidence of purposeful discrimina-
    tion, but rather argues that the government’s proffered reasons are
    pretextual, and the government did not dismiss similar white
    jurors.56   Because the determination turns on credibility assess-
    ments, we review for clear error at this stage as well.                Bentley-
    Smith, 2 F.3d at 1373; United States v. Seals, 
    987 F.2d 1102
    , 1109
    (5th Cir. 1993).
          The government offered distinguishing characteristics for each
    of the jurors Webster claims were similarly situated.                 They had
    different combinations of qualities, and some had more government-
    desired qualities than did the jurors the government preempted.
    See United States v. Jimenez, 
    77 F.3d 95
    , 100-01 (5th Cir. 1996)
    (other redeeming qualities relevant). Although Webster asserts the
    proffered reasons for striking the black jurors are mere proxies
    for race, he provides no basis as to why; and the reasons resemble
    ones we have accepted in the past.57           The court did not find the
    proffered    reasons    pretextual    and   found    no   other   evidence    of
    purposeful discrimination; we cannot say it clearly erred.
             See Bentley-Smith, 2 F.3d at 1374 (noting difficulty of bringing forward
    such evidence, and frequent necessity of relying on rebuttal of proffered reasons
    and comparison to jurors not stricken).
             See, e.g., United States v. Fields, 
    72 F.3d 1200
    , 1206 (5th Cir. 1996)
    (juror trying to develop rapport with defense attorney); United States v.
    69 F.3d 73
    , 739 (5th Cir. 1995) (potential juror’s brother convicted of
    a criminal offense, another potential juror appeared disinterested; another juror
    had lived in area of concern in the case; another juror’s sister had been
    arrested for a narcotics charge); United States v. Jackson, 
    50 F.3d 1335
    , 1341
    (5th Cir. 1995) (prosecutor believed that potential juror gave hostile look to
    prosecutor); United States v. Nixon, 
    977 F.2d 921
    , 923 (5th Cir. 1992) (potential
    juror appeared to prosecutor to express animosity toward prosecution).
          The court forced Webster to choose one of two expert psychiat-
    ric witnesses to testify during surrebuttal.               Webster claims this
    limitation violated his due process rights.               We find no error.
          Webster styles his claim of error as a due process violation.
    Due process requires a fair opportunity to defend against the
    charges, including calling and cross-examining witnesses; keeping
    information, including witnesses, from the jury may violate due
    process.     See, e.g., Montana v. Egelhoff, 
    518 U.S. 37
    Chambers v. Mississippi, 
    410 U.S. 284
    , 294 (1973); Washington v.
    388 U.S. 14
    , 23 (1967).           “Just as an accused has the right
    to   confront    the    prosecution’s      witnesses     for   the   purpose     of
    challenging their testimony, he has the right to present his own
    witnesses to establish a defense.              This right is a fundamental
    element of due process of law.”                 United States v. Thompson,
    130 F.3d 676
    , 686 (5th Cir. 1997), cert. denied, 
    118 S. Ct. 2307
          We never have intimated, however, that this due process right
    extends to presenting witnesses at surrebuttal. Indeed, we know of
    only two published opinions that have addressed limitations on
    surrebuttal in a due process context.58            Even assuming surrebuttal
             See United States v. Clark, 
    617 F.2d 180
    , 183, 187 (9th Cir. 1980)
    (recognizing as due process claim, but treating under abuse of discretion standard);
    United States v. One Single Family Residence Located at 15526 69th Drive N., 778 F.
    Supp. 1215, 1219 (S.D. Fla. 1991) (finding due process violation for a complete
    denial of surrebuttal).
    implicates due process concerns, we cannot say that the court’s
    limitation of Webster’s surrebuttal to one of two expert witnesses
    whom the court considered cumulative was so arbitrary and fundamen-
    tally unfair as to deprive him of due process.59
          After entering a sentence of death on the verdict, the court
    filed a finding entitled Factual Finding Regarding Mental Retarda-
    tion in which the court stated, “Webster is not mentally retarded
    and . . . he possesses the requisite mental capacity to understand
    the death penalty and why it will be imposed on him.              As a result,
    the defendant Webster is not exempt under 18 U.S.C. § 3596(c) from
    implementation of the death penalty.”60            Webster objects to this
    finding on several grounds:            (1) It was made in contravention of
             Typically, we review the decision to permit or deny surrebuttal under
    the abuse of discretion standard. See, e.g., United States v. Alford, 
    999 F.2d 818
    , 821 (5th Cir. 1993); United States v. Moody, 
    903 F.2d 321
    , 330 (5th Cir.
    1990).   The Ninth Circuit has examined a due process claim under the same
    standard.   See Clark, 617 F.2d at 187.     Under this standard, too, limiting
    surrebuttal that the district court considers cumulative rests soundly within its
    discretion. See, e.g., United States v. O’Brien, 
    119 F.3d 523
    , 531 (7th Cir.
    1997) (no abuse of discretion where surrebuttal would be cumulative); United
    States v. Blackstone, 
    56 F.3d 1143
    , 1146 (9th Cir. 1995) (same); United States
    v. Wilford, 
    710 F.2d 439
    , 452 (8th Cir. 1982) (same); United States v. Burgess,
    691 F.2d 523
    , 531 n.19 (4th Cir. 1982) (same); United States v. Stirling,
    571 F.2d 708
    , 736 (2d Cir. 1978) (same).
               Section 3596(c) provides,
          A sentence of death shall not be carried out upon a person who is
          mentally retarded. A sentence of death shall not be carried out
          upon a person who, as a result of mental disability, lacks the
          mental capacity to understand the death penalty and why it was
          imposed on that person.
    the FDPA; (2) it was made in derogation of Webster’s rights to due
    process and effective assistance of counsel; (3) it was contrary to
    the greater weight of the credible evidence; and (4) it was
    inconsistent with the verdict on this issue.61 We conclude that the
    court took proper action, and the finding was supported by the
          Webster failed to object to the factual finding.            Our review,
    therefore, is limited to plain error.          United States v. Calverley,
    37 F.3d 160
    , 162 (5th Cir. 1994) (en banc).            To find plain error,
    we must perceive (1) an error by district court, in that it
    deviated from a legal rule, (2) that was clear and, at a minimum,
    obvious under current law at the time of the trial, and (3) the
    error must affect substantial rights.          Id. at 162-63.
          Webster alleges the factual finding was in contravention of
    the FDPA’s statutory scheme, but the statute fails to address how
    to ensure that the mandate of § 3596(c) is carried out.                Because
    the statute fails to provide guidance, and no case has addressed
    this issue, the law is not pellucid; the court did not plainly err
    in its sua sponte finding that Webster is not mentally retarded.
             Webster intimates that imposing the death sentence on him, if he is
    mentally retarded, would violate the Eighth Amendment. The Supreme Court has
    rejected this argument. See Penry v. Lynaugh, 
    492 U.S. 302
    , 340 (1989) (“[W]e
    cannot hold today that the Eighth Amendment precludes the execution of any
    mentally retarded person . . . simply by virtue of his or her mental retardation
         Webster argues that the statute provides sufficient guidance.
    We disagree.         Webster points to § 3593(b)(3), which provides that
    the court will act as a fact-finder “upon the motion of the
    defendant and with the approval of the attorney for the govern-
    ment.” Webster interprets this to preclude any fact-finding by the
    court absent the defendant’s motion. The conclusion, however, does
    not flow from the statute.
         Section 3593(b) provides that “the judge who presided at the
    trial    .   .   .     shall   conduct    a    separate    sentencing     hearing   to
    determine        the    punishment       imposed.         The   hearing    shall    be
    conducted . . . (3) before the court alone, upon the motion of the
    defendant and with the approval of the attorney for the govern-
    ment.”       This provision refers only to the determination of the
    sentence; it is located in the section captioned “Special hearing
    to determine whether a sentence of death is justified.”                     It in no
    way implies that all court fact-finding must be on the defendant’s
         Webster also asserts that, in the absence of a specific
    statutory scheme, the only logical conclusion is that the jury must
    be the fact-finder on the issue of mental retardation.                             This
    “logical” claim suffers from gaps in reasoning.
         First, only §§ 3592 and 3593 address issues that a jury may be
    called on to consider.           Section 3592 lays out all of the factors
    for the finder of fact to considerSSthe mitigating and aggravating
    factors.      Section 3593 explains the procedure for the sentencing
    hearing, including laying out the options for who the fact-finder
    may beSSjury, newly impaneled jury, or judge.
           Section   3596   addresses   “Implementation        of   a   sentence   of
    death.” It is here that Congress chose to indicate its restriction
    on who could be executed.          Placement of the consideration here,
    rather than in the earlier sections addressing the issues for the
    jury   to   consider    in   imposing    the   sentence,    belies    Webster’s
    assertion that the issue obviously belongs to the jury.
           In   addition,   although    Webster     did   request       and   receive
    submission of the mitigating factor that he “is or may be mentally
    retarded,” he did not request a jury instruction that placed in the
    jury's hands the job of factually finding whether Webster is
    mentally retarded.       That the jury could consider whether Webster
    “is or may be retarded” falls woefully short of the factual finding
    required in § 3596 of mental retardation to prevent the implementa-
    tion of the death sentence.             The lack of a jury instruction
    request, along with failing to object to the factual finding,
    suggests that Webster’s “logical assumption” placing this issue in
    the jury’s hands was no more obvious to him at trial than it was to
    the district court.
           The statutory scheme simply does not answer who decides this
    issue, so we cannot say the court’s decision clearly contravened
    the FDPA.     Given the lack of clarity, the court did not commit
    plain error in deciding the issue itself.
          Webster asserts that the procedure the court chose violated
    due process and deprived him of effective assistance of counsel.
    Neither is true.       Webster rests these claims on the fact that the
    court acted without statutory authority and without notice to him.
    Bare assertions aside, Webster provides no analysis as to why the
    court’s determination violates the Constitution.
          The    alleged    denial   of   effective    assistance    of   counsel
    presumably rests on Webster’s lack of opportunity to present his
    case.      Even assuming this rises to the level of constitutional
    error, it is harmless.           Webster had just finished presenting
    voluminous evidence to the jury, in support of his claim of mental
    retardation.62    The court had ample information before it to make
    its decision; indeed, just before the jury retired, Webster had
    asked the court to find him mentally retarded as a matter of law,
    taking the mitigating factor out of the jury’s hands.                 Webster
    makes no showing of prejudice to his substantial rights by arguing
    there is something additional he would have presented to the court.
    The court did not plainly err in failing to provide Webster with
    notice, and did not deprive him of a fundamentally fair trial.
             Cf. United States v. Bachynsky, 
    949 F.2d 722
    , 732-33 (5th Cir. 1991)
    (holding that sentencing court cannot base decision on matters outside of
    presentence report without notice to defendant to provide “ample opportunity to
    raise his factual contention.”).
          Webster contends that the finding that he is not mentally
    retarded is against the greater weight and credibility of the
    evidence.   The standard of review for a finding that a defendant is
    not mentally retarded under § 3596 presents an issue of first
    impression.    Because it is a factual finding, we adopt the clearly
    erroneous standard.63
          The government presented substantial evidence to support the
    finding.    Furthermore, only four of the twelve jurors found that
    Webster is or may be mentally retard and that he suffers from low
    intellectual functioning. We cannot say the court clearly erred in
    deciding that Webster is not mentally retarded.
          Webster contends that the court’s determination conflicts with
    the verdict on this issue.      Webster fails to indicate the import of
    this argument, aside from supporting his claim of a constitutional
    violation and his assertion that the finding contradicts the
    greater weight of the evidence.
          Only four of twelve jurors concluded Webster “is or may be
    mentally retarded.”      Webster’s failure to convince a majority of
    the jurors alone suggests the court’s finding is not inconsistent
    with the verdict.     Furthermore, those four jurors found only that
    he is or may be mentally retarded.            Obviously, this mitigating
            Cf. United States v. Kimbrough, 
    69 F.3d 723
    , 733 (5th Cir. 1995) (noting
    that we review factual findings in examining a sentence imposed for clear error).
    factor requires less certainty than does the determination that he
    is not mentally retarded.
         As a result of this lesser standard, we can conclude that
    eight jurors were not convinced that he even “may be” mentally
    retarded; they believed he was not.   We cannot conclude that the
    court’s agreement with a majority of the jurors constitutes a
    clear, obvious error.
         Webster argues that the evidence does not support the special
    findings of the existence of the aggravating factors and that the
    sentence of death was imposed under the influence of passion,
    prejudice, or some other arbitrary factor.   This contention stems
    directly from the FDPA’s requirement that a court of appeals “shall
    consider whether the sentence of death was imposed under the
    influence of passion, prejudice, or any other arbitrary factor and
    whether the evidence supports the special finding of the existence
    of an aggravating factor required to be considered under section
    3592.”   § 3595(c)(1).
         Webster fails to distinguish between these two requirements as
    distinct responsibilities of an appellate court.        Rather, he
    suggests that the only way we can fulfill our responsibility under
    the provision as a whole is to conduct “a de novo review and a
    balancing of the evidence.” Any other method, Webster claims, will
    fail to ferret out which verdicts were imposed under the impermis-
    sible factors.64 An appellate court, however, is a court of review.
    We do not sit as a second jury.           Instead, we will address the two
    aspects of our review in turn.          See Hall, 
    152 F.3d 426
    each in turn, rather than engaging in one unified, de novo review).
          First, we must determine whether the evidence supports the
    jury’s special findings of the aggravating factors.                  The statute
    does not clarify what standard of review we should use.                Nothing in
    the FDPA, however, indicates that it alters our ordinary standards
    of review.65      To protect the jury’s domain, we apply the usual
    standard of sufficiency of the evidence.66
          “Review for sufficiency of the evidence is decidedly narrowSSa
    [finding of an aggravating factor] must be affirmed if a rational
    trier of fact could have found that the evidence established the
    essential elements of [its existence] beyond a reasonable doubt.”67
             Webster also suggests this requires a proportionality review; we see no
    basis in the statute for such an assertion.
             See United States v. Chandler, 
    996 F.2d 1073
    , 1083 (11th Cir. 1993)
    (holding similar provision of 21 U.S.C. § 848(q)(3) does not alter ordinary
    standards of review).
            See Hall, 152 F.3d at 426 (finding “the record contains ample evidence from
    which the jury could conclude beyond a reasonable doubt” that the aggravating
    factors existed).
             United States v. Ramirez, 
    145 F.3d 345
    , 350 (5th Cir. 1998), petition for
    cert. filed (Sept. 28, 1998) (No. 98-6687); United States v. Cluck, 
    143 F.3d 174
    180 (5th Cir. 1998) (noting that “we review the evidence in the light most favorable
    In view of this record, a rational jury could find beyond a
    reasonable doubt that all four remaining aggravating factors exist.
          Our next responsibility is to ensure that the sentence was not
    handed down under the influence of passion, prejudice, or some
    other arbitrary factor.         Again, Webster asserts this requires a
    de novo re-weighing of the evidence, for any other assessment will
    fail to negate the possibility that arbitrary factors were at work.
          We question whether this is an accurate statement of our
    responsibility under the FDPA.68             We need not decide this issue
    today, however, for we have already conducted a thorough re-
    examination of the aggravating and mitigating factors in part
    IV.A.1.c, supra, as part of our harmless error review.              We also see
    nothing in the record indicating that the sentence was imposed
    under the influence of passion, prejudice, or any other arbitrary
    factor.       The death sentence is warranted by the jury’s specific
          Webster launches a variety of attacks on the constitutionality
    to the jury verdict”), petition for cert. filed (Sept. 26, 1998).
             See Hall, 152 F.3d at 426 (stating that “[w]e have found nothing in the
    record indicating that the jury’s recommendation of a death sentence was motivated
    in any degree by passion, prejudice, or any other arbitrary factor”).
    of the FDPA.       We entertained and rejected most of these arguments
    in the past, see Hall, 152 F.3d at 413-19; Jones, 132 F.3d at 239-
    42,    foreclosing     our   reconsideration       of   them   today.69      Those
    arguments that we have not heard in the past we consider de novo.
    See United States v. Bailey, 
    115 F.3d 1222
    , 1225 (5th Cir. 1997),
    cert. denied, 
    118 S. Ct. 866
           Webster’s constitutional challenges that we have addressed in
    the past      we    deal   with   expeditiously.        Contrary    to   Webster’s
    arguments, (1) the FDPA provides sufficient safeguards to prevent
    the arbitrary imposition of the death penalty, Jones, 132 F.3d at
    241;    (2)   the     FDPA   sufficiently    circumscribes         its   delegated
    authority with 'intelligible principles' to avoid violating the
    nondelegation doctrine, id. at 239; (3) the Constitution does not
    mandate “proportionality review,” that is, a comparison of the
    penalties imposed in similar cases, id. at 240; (4) the FDPA’s
    relaxed evidentiary standard at the sentencing hearing is not
    unconstitutional, id. at 241-42; (5) the “especially heinous, cruel
    or depraved manner” aggravating factor is not impermissibly vague,
    at least where the vagueness is cured by the statutory limitation
    that the offense involve torture or serious physical abuse and by
            See Garcia Abrego, 141 F.3d at 151 n.1 (“It has long been the rule of this
    court that no panel of this circuit can overrule a decision previously made by
    another.” (internal quotation marks omitted)).
    further limitation in the jury instructions, id. at 249; Hall,
    152 F.3d at 414-15;70 and (6) the FDPA’s inclusion of the “mere
    fact” that Webster was convicted of kidnaping and murdering Lisa
    Rene as an aggravating factor does not constitute constitutionally
    impermissible “stacking,” or double-counting, Jones, 132 F.3d at
    249; Hall, 152 F.3d at 416-17.71
          Webster raises three constitutional arguments that we address
    as matters of first impression.         We reject them seriatim.
          Webster argues that the FDPA is unconstitutional for failing
    significantly to narrow the class of offenses to which the death
    penalty applies. Under Maynard v. Cartwright, 
    486 U.S. 356
    , 363-64
    (1988), the government may not make every unjustified intentional
    killing qualify for the death penalty.             The FDPA does precisely
    that, Webster argues, by making the four mental states of murder
    aggravating    factors     that   qualify    the   defendant     for   capital
    punishment under § 3591(a).           Webster’s argument stems from a
             Webster also asserts, without analysis, that the “substantial planning
    and premeditation” aggravator is impermissibly vague. His argument is foreclosed
    by our analysis of the same language in the analogous 21 U.S.C. § 848(e) death
    penalty scheme. See Flores, 63 F.3d at 1373-74.
             Further, because the jury did not find the aggravator of which Webster
    complains, he cannot claim his sentence is impaired.
    misreading of the statute.
         As the government points out, § 3591(a) does not set forth a
    list of   aggravating       factors,    but,       on   the   contrary,   serves a
    gatekeeping function.         Section 3591(a) codifies the command in
    Enmund, 458 U.S. at 797, and Tison, 481 U.S. at 157, to limit the
    imposition   of    the    death   penalty     to    those     murderers   who   both
    undertake felony participation and demonstrate at least reckless
    indifference to human life.           Satisfaction of these elements only
    begins the death penalty inquiry; it does not and cannot establish
    death penalty eligibility by itself.               The limiting factors, which
    Webster   claims    are    lacking,    are,    of       course,   the   aggravating
    circumstances set forth in § 3592(b) and (c), which guide the jury
    in its capital decision after it finds at least one element of
    intent under § 3591(a) as a threshold matter.
         Webster contends that the FDPA is unconstitutional because it
    permits the multiple weighing of aggravating factors (specifically,
    the § 3591(a)(2) mens rea factors).            This argument stems from the
    same fundamental misunderstanding of § 3591(a) discussed above. See
    part IV.N.2.a, supra; see also part IV.A.2, supra (discussing
    “double weighing”).       As we have explained, § 3591(a) does not set
    forth aggravating factors, but rather serves as a preliminary
    qualification threshold.          The fact that a defendant could satisfy
    more than one of these via the same course of action does not,
    therefore,      constitute    impermissible      double    counting.      Thus,
    although Webster is correct in noting that many courts have held
    that “double counting” of aggravating factors is to be avoided, the
    FDPA does not present such a problem.72
           Webster asserts that by precluding consideration of “race,
    color, religious beliefs, national origin, or sex of the defendant
    or of any victim” as a mitigating factor, the FDPA is unconstitu-
    tional. See § 3593(f). Webster correctly interprets the FDPA, but
    incorrectly interprets the Constitution; the FDPA can be constitu-
    tional only by precluding such factors.
           The Equal Protection Clause protects from purposeful state
    discrimination on the basis of race.          Shaw v. Reno, 
    509 U.S. 630
    642 (1993). The Due Process Clause of the Fifth Amendment provides
    this   same    “equal   protection”    against    the     federal   government.
    Bolling v. Sharpe, 
    347 U.S. 497
    , 498-500 (1954).               Court proceed-
    ings, especially criminal trials, implicate state action, therefore
    bringing      them   under   equal   protection    scrutiny.        Georgia   v.
    505 U.S. 42
    , 49-55 (1992); Edmonson v. Leesville Concrete
    500 U.S. 614
    , 621-29 (1991).
             As we have said in part IV.A.2, supra, the instructions sufficiently
    informed the jury not to weigh the elements of intent.
          More specifically, the Equal Protection Clause prohibits the
    state from using race in its decision-making, unless it can meet
    the “most exacting scrutiny . . . justified by a compelling
    government interest.”73            In the realm of capital sentencing, this
    standard never can be met, because race is a “totally irrelevant
    factor.”    Zant v. Stephens, 
    462 U.S. 862
    , 885 (1983).               Therefore,
    the FDPA can pass constitutional muster only if it is interpreted
    absolutely       to     prohibit    racial     considerations    in   sentencing.
    Because we are obligated to interpret a statute in such a way as to
    preserve, if possible, its constitutionality, Rust v. Sullivan,
    500 U.S. 173
    , 190 (1991); United States v. Bird, 
    124 F.3d 667
    678-79 (5th Cir. 1997), cert. denied, 
    118 S. Ct. 1189
     (1998), we
    reason that race cannot be considered as either a mitigating or
    aggravating factor under the FDPA.
          Although the use of race in government decision-making is, as
    a general matter, “odious to a free people whose institutions are
    founded upon the doctrine of equality,” Hirabayashi, 320 U.S. at
    100, the use of race in sentencing determinations is particularly
    invidious.       “Discrimination on the basis of race, odious in all
    aspects,    is        especially    pernicious     in   the   administration   of
    justice."     Rose v. Mitchell, 
    443 U.S. 545
    , 555 (1979).                And, in
    capital sentencing, the use of race becomes more offensive still:
             Palmore v. Sidoti, 
    466 U.S. 429
    , 432-33 (1984); Hirabayashi v. United
    320 U.S. 81
    , 100 (1943); Hopwood v. Texas, 
    78 F.3d 932
    , 939-40 (5th Cir.),
    cert. denied, 
    518 U.S. 1033
          Considering the race of a defendant or victim in deciding
          if the death penalty should be imposed is completely at
          odds with th[e] concern that an individual be evaluated
          as a unique human being. Decisions influenced by race
          rest in part on a categorical assessment of the worth of
          human beings according to color, insensitive to whatever
          qualities the individuals in question may possess.
    McCleskey, 481 U.S. at 336 (Brennan, J., dissenting).
          Although divided in its decision, the Court in McCleskey was
    unanimous in its acknowledgment of “the illegitimacy of race as a
    consideration in capital sentencing.”           Id. at 341 (Brennan, J.,
    dissenting); id. at 292-93 (majority opinion).          Webster would have
    us go against this precedent, and rule that a defendant can be
    spared the death penalty because of his race.           Such practices are
    precisely those forbidden by the Equal Protection Clause.              Id. at
    341   (noting   that    “enhanced    willingness   to   impose   the   death
    sentence” or “diminished willingness to render such a sentence” are
    impermissible when based on race).
          In sum, a long line of Supreme Court precedent admonishes that
    the guillotine must be as color-blind as is the Constitution. See
    McCleskey, 481 U.S. at 292-93; Zant, 462 U.S. at 885; Rose,
    443 U.S. at 555.       Today’s decision recognizes this precedent in
    interpreting the FDPA in the only way constitutionally permissible:
    as prohibiting the consideration of race in sentencing.
          Webster   has    constructed   an    artificial   conflict,   however,
    between the FDPA and Supreme Court precedent regarding mitigating
    evidence.   He reads Penry v. Lynaugh, 
    492 U.S. 302
    , and Lockett v.
    438 U.S. 586
     (1978), as mandating the use of race in
    sentencing.     Such a reading of Penry and Lockett is erroneous for
    at least two reasons:        It ignores the concept of relevancy, and it
    would cause those cases to conflict with the Fourteenth Amendment
    for the reasons discussed above.
          Penry and Lockett hold that in capital sentencing, a defendant
    must be permitted to introduce all “evidence relevant to the
    defendant’s background or character . . . that mitigate against
    imposing the death penalty.”            Penry, 492 U.S. at 318 (emphasis
    added).74    As a matter of law, race is “totally irrelevant to the
    sentencing process.”        Zant, 462 U.S. at 885; McCleskey, 481 U.S.
    at 316 (discussing the unconstitutionality of using the “irrelevant
    factor of race” in sentencing).           Therefore, when the FDPA and the
    Supreme Court speak of “background or character” evidence, they
    obviously mean to permit, and can mean to permit only, the specific
    beliefs and life experiences of the defendant in question.
          Thus, although race per se is an irrelevant and inadmissible
    factor, the effects and experiences of race may be admissible.                   If
    a defendant can show that his life has been marked by discrimina-
    tion or some other set of experiences, irrespective of whether the
             See also McCoy v. North Carolina, 
    494 U.S. 433
    , 440 (1990) (explaining that
    the “meaning of relevance is no different in the context of mitigating evidence
    introduced in a capital sentencing proceeding” from its meaning during the case in
    chief; evidence is relevant if “it tends logically to prove or disprove some fact
    or circumstance which a fact-finder could reasonably deem to have mitigating value”)
    (quoting McCoy v. North Carolina, 
    372 S.E.2d 12
    , 45 (N.C. 1988) (Exum, C.J.,
    result,     in   part,   of     his    race,    then   that     properly   might    be
    admissable as relevant mitigating background or character evidence.
    But this is a far cry from using race in and of itself as a proxy
    for such a set of beliefs and experiences.                    Pigmentation does not
    define a person’s character or background; the life that a person
    has led and the things that he has experienced do.
         We permitted Webster to file a supplemental brief raising an
    additional       issue   on    appeal,    arguing      that    his   conviction    and
    sentence were based on testimony that was illegally induced from
    his co-defendants.            Citing United States v. Singleton, 
    144 F.3d 1343
     (10th Cir.), vacated for reh’g en banc, 
    144 F.3d 1361
    Cir. 1998), Webster contends that the testimony of his co-defen-
    dants against him was induced by the government in violation of
    18 U.S.C. § 201(c)(2).75              Because we find no plain error in the
    failure sua sponte to suppress the co-defendants’ testimony, we
              Section 201(c)(2) reads,
         directly or indirectly, gives, offers or promises anything of value
         to any person, for or because of the testimony under oath or
         affirmation given or to be given by such person as a witness upon a
         trial, hearing, or other proceeding, before any court, any committee
         of either House or both Houses of Congress, or any agency,
         commission, or officer authorized by the laws of the United States
         to hear evidence or take testimony, or for or because of such
         person’s absence therefrom;
               shall be fined under this title or imprisoned for not more
         than two years, or both.
    deny Webster’s attempt to raise this issue for the first time on
         In   Singleton,      a    panel   held   that   the   plain       language   of
    § 201(c)(2) prohibits prosecutors from making promises “of value”
    to witnesses in exchange for testimony.              According to the panel,
    such prohibited promises include promises not to prosecute for
    certain offenses, promises to inform authorities of cooperation,
    and promises to inform the court of cooperation.                 See Singleton,
    141 F.3d at 1348. Webster claims that the government’s promises to
    his co-defendantsSSnot seeking the death penalty, agreeing to
    guilty pleas for lesser crimes, not prosecuting other acts stemming
    from the same incident, dismissing remaining indictment counts,
    notifying   the   court       of   cooperation,   and   filing     a    motion    for
    downward departure in sentencingSSviolate the plain language of
    § 201(c)(2) in the same manner as did the promises in Singleton.
         Because Webster did not move to suppress the testimony of his
    co-defendants, the issue of their testimony’s legality presents an
    entirely new issue.           We may consider this question on appeal,
    therefore, only if it constitutes plain error.76
          We find plain error “only when the appellant shows that
    (1) there is an error, (2) the error is plain, and (3) the error
    affects her substantial rights.”           Ravitch, 128 F.3d at 869 (citing
    Olano, 507 U.S. at 732).         Even if we find such an error, however,
    we will not “exercise [our] discretion to correct such errors
    unless the error seriously affects the fairness, integrity, or
    public reputation of judicial proceedings.”               Id.
          “Error is defined as a deviation from a legal rule in the
    absence of a valid waiver.”         Calverley, 37 F.3d at 162.          “Plain is
    synonymous with 'clear' or 'obvious' and 'at a minimum' contem-
    plates an error which was 'clear under current law' at the time of
    the trial.”       Id.     Finally, “affecting substantial rights” is
    understood to mean that the error “must affect the outcome of the
    proceeding.”      Id. at 164.
          Webster argues that the court erred by failing sua sponte to
    apply § 201(c)(2) and suppress the testimony of his co-defendants.
    Moreover, he argues that without the testimony of his co-defen-
             See United States v. Olano, 
    507 U.S. 725
    , 731 (1993) (“No procedural
    principle is more familiar to this Court than that a [right] may be forfeited in
    criminal as well as civil cases by the failure to make timely assertion of the right
    before a tribunal having jurisdiction to determine it.”) (quoting Yakus v. United
    321 U.S. 414
    , 444 (1944) (internal citations omitted)); see also United
    States v. Ravitch, 
    128 F.3d 865
    , 869 (5th Cir. 1997); Calverley, 37 F.3d at 162;
    Helms v. United States, 
    340 F.2d 14
    , 19 (5th Cir. 1964).
    dants, there is great doubt that he would have been convicted.
          Although    Webster's    argument     that   the   suppression   of   co-
    defendant testimony substantially would have affected his convic-
    tion is persuasive, Webster faces an insurmountable burden in
    showing that the court plainly erred.               At the time of trial,
    Singleton had not yet been handed down.            Thus, the court did not
    commit plain error when it did not follow a decision that had not
    yet been decided.       Moreover, even if Singleton had been decided
    before trial, decisions of other circuits are not binding on the
    courts of this circuit, so according to the “current law” of this
    circuit, the testimony of co-defendants still would have been
          The best Webster can argue is that, at the time of his trial,
    the applicability of § 201(c)(2) to government plea bargains in
    this circuit was uncertain.78         “The uncertainty manifest in [an]
    area of the law illustrates that any error on the part of the trial
    court could not have been plain.”            Calverley, 37 F.3d at 165.
             We recently agreed to review a claim that was not raised until appeal
    when we found there had been an intervening change in the law.         See DSC
    Communications Corp. v. Next Level Communications, 
    107 F.3d 322
    , 326 n.2
    (5th Cir. 1997).     Unlike Webster, however, the appealing party in DSC
    Communications relied on an intervening change in the law of this circuit,
    whereas Webster relies on a vacated opinion of another circuit.
             The uncertainty of this circuit’s law on this point is already
    anticipated in two recent district court decisions. In United States v. Duncan,
    1998 U.S. Dist. LEXIS 11123
     (E.D. La. July 15, 1998), the court refused to order
    a new trial based on § 201(c)(2). But in United States v. Fraguela, 1998 U.S.
    Dist. LEXIS 14347 (E.D. La. Aug. 27, 1998), the court granted a new trial and
    adopted the Singleton panel’s reading of § 201(c)(2).
          Webster challenges a district court decision on the basis of
    a new interpretation of an existing law even though no Fifth
    Circuit precedent directly supports his reading of § 201(c)(2).79
    At most, he can support the uncertainty of § 201(c)(2)’s applica-
    bility to government plea bargains.          A court's failure to apply an
    uncertain interpretation of a statute is far from plain error.
    Rather than finding plain error by adopting a new interpretation of
    an existing statute based on the vacated decision of another
    circuit, we deny Webster’s challenge to the court’s failure to
    suppress the testimony of his co-defendants.
             Because we find no plain error in the failure to suppress the co-
    defendants' testimony, we do not reach the question of the proper reading of
    § 201(c)(2). A review of this circuit’s precedents shows, however, that we
    consistently have upheld government efforts to provide benefits to witnesses in
    exchange for testimony when challenged on other grounds. The district court did
    not err by conforming to this precedent.
          In United States v. Cervantes-Pacheco, 
    826 F.2d 310
    , 315 (5th Cir. 1987)
    (en banc), we explained our views on the propriety of giving benefits in exchange
    for witness testimony when we held that contingent compensation for witnesses may
    occur as long as the nature of such compensation is fully disclosed to the jury.
    We noted that “[n]o practice is more ingrained in our criminal justice system
    than the practice of the government calling a witness who is an accessory to the
    crime for which the defendant is charged and having that witness testify under
    a plea bargain that promises him a reduced sentence.” Id. We went on to point
    out that “courts uniformly hold that such a witness may testify so long as the
    government’s bargain with him is fully ventilated so that the jury can evaluate
    his credibility.” Id. Thus, our general rule has been to allow the government
    to confer benefits upon witnesses in exchange for testimony (even contingent
    monetary compensation).
          Along with our sister circuits, we also explicitly have upheld admitting
    the testimony of witnesses who were promised reduced sentences. See United
    States v. Kimble, 
    719 F.2d 1253
     (5th Cir. 1983); see also United States v. Evans,
    697 F.2d 240
     (8th Cir. 1985); United States v. Miceli, 
    446 F.2d 1253
     (1st Cir.
    1971); United States v. Vida, 
    370 F.2d 759
     (6th Cir. 1966); Lyda v. United
    321 F.2d 788
     (9th Cir. 1963) (discussed in United States v. Dailey,
    759 F.2d 192
    , 198-200 (1st Cir. 1985)).