United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3264
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Robert L. Bolden, Sr.,                   *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: June 9, 2008
                                  Filed: November 4, 2008 (Corrected: 11/11/08)
                                                           (Corrected: 11/13/08)
                                   ___________

Before LOKEN, Chief Judge, EBEL* and COLLOTON, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

      Robert Bolden murdered security guard Nathan Ley outside a St. Louis bank
during an attempted robbery. After a month-long trial, a federal jury convicted
Bolden of killing Ley with a firearm during an attempted bank robbery, conspiracy to
commit bank robbery, and being a felon-in-possession of a firearm. The jury
sentenced him to death for the bank robbery-murder and firearm offenses. See 18



      *
      The HONORABLE DAVID M. EBEL, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
U.S.C. §§ 2113(e), 924(j)(1). Bolden appeals, arguing the district court1 committed
some thirty reversible errors prior to and during trial. We will first address the three
issues emphasized at oral argument. After careful review of the record, we affirm.

                                   I. Background

       Dominick Price testified that, on the morning of October 7, 2002, Bolden asked
Price to help rob a Bank of America branch because Bolden needed $2,000 to avoid
being evicted from his home. As the two “cased” the bank, Bolden told a hesitant
Price his plan: Bolden would brandish his handgun and disarm the guard outside the
bank, then Bolden and Price would take the guard into the bank as a hostage, demand
money, and drive away in Bolden’s car. The two men purchased nylon stocking caps,
and Bolden recruited a third man, Corteze Edwards, to assist in the robbery.

       Early that afternoon, the trio dressed in dark clothing and drove to a parking lot
near the bank. Price and Edwards wore masks. Bolden did not. When bank guard
Ley walked out of the bank, Bolden approached on foot, with Price and Edwards
fifteen-to-twenty feet behind. Price testified that Bolden stopped a short distance from
Ley and pointed his handgun at the guard. After a brief dialog, Ley reached for the
gun, and they struggled. Bolden regained control of the gun and shot Ley in the jaw.
As Ley fell, Bolden took a step back and fired another shot into Ley’s head. Ley died
from the second wound later that afternoon. The three robbers ran off, shedding
clothing as they ran. Many bystanders witnessed the shooting. One saw Bolden drive
away, and he was arrested that evening. Clothing found near the bank tested positive
for traces of DNA from Bolden, Price, and Edwards. A later search of Bolden’s home
uncovered the handgun used to kill Ley and ammunition matching that found during
Ley’s autopsy.


      1
        The HONORABLE CAROL E. JACKSON, Chief Judge of the United States
District Court for the Eastern District of Missouri.

                                          -2-
                               II. A Batson Challenge

       Before trial, the government used a peremptory challenge to strike prospective
juror number 44, an African American woman. Bolden argued the strike violated
Batson v. Kentucky, 

(1986), which held that it is a violation of the Equal
Protection Clause for the government to use a peremptory challenge to strike a
prospective juror solely on the basis of race. After the district court ruled that Bolden
established a prima facie case of discrimination, the government claimed that it struck
juror 44 for a race-neutral ground -- because, when asked to elaborate on her
questionnaire response that the criminal justice system should use legal students for
research, she explained that she believed based on twelve years of legal training that
using legal students for research would assist the criminal justice system. The
government expressed concern that she might give more weight to her legal training
than is warranted and that there was no way to know how this experience might affect
the deliberation process.2

       The district court found that this was a race-neutral reason, comparing the strike
of juror 44 with the government’s strike of juror 142, a white high school teacher who
said he often discussed constitutional law issues with his students. The court rejected
Bolden’s assertion that juror 44 should be compared with non-stricken white juror
176, a deputy clerk for a Missouri court who stated in her questionnaire that her
“passion is to see criminals convicted,” and that she has a favorable view of the court
system based upon her son’s fair treatment for pending drug related charges. The
court’s ultimate finding was that Bolden failed to prove that the strike of juror 44 was
motivated by race discrimination.




      2
       The government also claimed that an Assistant United States Attorney may
have offended juror 44 when he addressed her by the wrong name. The district court
did not credit this reason.

                                          -3-
       On appeal, Bolden argues the district court clearly erred when it denied his
Batson challenge because the government’s purported race-neutral reason for striking
juror 44 was implausible. We review the court’s Batson rulings for clear error,
keeping in mind that “the ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from the party opposing the strike.” Purkett v. Elem, 

, 768 (1995); see Snyder v. Louisiana, 

, 1208 (2008). After
careful review of the questionnaire responses and voir dire testimony, and giving the
district court’s findings the “great deference” Batson 

n.21, we
conclude that the district court did not clearly err in finding that the government stated
a race-neutral reason for striking juror 44 that was adequately supported by the record.
Compare United States v. Ortiz, 

, 896-97 (8th Cir. 2002), cert. denied,

(2003).

                        III. Statutory Aggravating Factors

       The Federal Death Penalty Act of 1994 (“FDPA”) provides that, if the
defendant has been found guilty of a homicide offense for which the death penalty
may be imposed, the trial judge “shall conduct a separate sentencing hearing to
determine the punishment to be imposed.” 18 U.S.C. § 3593(b). At this hearing,
“information may be presented as to any matter relevant to the sentence, including any
mitigating or aggravating factor,” regardless of its admissibility under the Federal
Rules of Evidence. § 3593(c). The jury must find beyond a reasonable doubt at least
one of sixteen “aggravating factors” before it may impose the death penalty; the
government has the burden of proving “any aggravating factor . . . beyond a
reasonable doubt.” 

has the burden of proving “any mitigating
factor . . . by a preponderance of the evidence.” 

then considers “all the
information received during the hearing,” and returns “special findings” identifying
the statutory and non-statutory aggravating factors it has unanimously found to exist,
and the mitigating factors that one or more jurors have found to exist. If no statutory
aggravating factor is found beyond a reasonable doubt, “the court shall impose a

                                           -4-
sentence other than death.” § 3593(d). If the jury instead finds the requisite mental
state and one or more statutory aggravating factors, then it “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” and, based upon this
consideration, recommend by unanimous vote “whether the defendant should be
sentenced to death, to life imprisonment without possibility of release or some other
lesser sentence.” § 3593(e).

       Bolden’s superseding indictment alleged and the jury found two aggravating
factors, “pecuniary gain” and “conviction for two felony drug offenses.” See
§§ 3592(c)(8), (10). Bolden challenges those findings on multiple grounds.3

        A. Pecuniary Gain. Committing a homicide “as consideration for the receipt,
or in the expectation of the receipt, of anything of pecuniary value” is an aggravating
factor. 18 U.S.C. § 3592(c)(8). In this case, the district court instructed the jury only
on the second clause -- the government must prove that Bolden “committed the
killing or murder in the expectation of anything in the form of money, property, or
anything else having some economic value, benefit or advantage.” Emphasizing the
first clause, Bolden argues that the pecuniary gain factor only applies to a murder-for-
hire. He urges us to read subsection (c)(8) in tandem with subsection (c)(7), which
applies to a defendant who “procured the commission of the offense by payment, or
promise of payment, of anything of pecuniary value.”




      3
        Bolden also argues that the district court should have dismissed the indictment
because the government misled the grand jury concerning the evidence of these
aggravating factors. We disagree. This allegation of prosecutorial misconduct during
the grand jury proceedings was rendered harmless beyond a reasonable doubt by the
petit jury’s guilty verdict. United States v. Sanders, 

, 818-19 (8th Cir.
2003), cert. denied, 

(2004).

                                          -5-
       Bolden did not raise this issue in the district court, so our review is for plain
error. At least five other circuits agree that § 3592(c)(8) applies, not only to murder-
for-hire, but also when the murder itself, and not just an underlying offense such as
robbery, was committed with the expectation of pecuniary gain. As the Eleventh
Circuit explained, “The ‘consideration’ and ‘expectation’ clauses are two separate
ways by which the pecuniary gain factor may be satisfied, and they both must have
meaning.” United States v. Brown, 

, 1370 (11th Cir. 2006), cert.
denied, 

(2007); accord United States v. Mitchell, 

, 974-
75 (9th Cir. 2007), cert. denied, 

(2008); United States v. Barnette, 

, 784-85 (4th Cir. 2004), vacated on other grounds, 

(2005);
United States v. Bernard, 

, 483-84 (5th Cir. 2002), cert. denied, 

(2003); United States v. Chanthadara, 

, 1263-64 (10th Cir. 2000),
cert. denied, 

(2001). Though we have never addressed the issue, our
prior decisions are consistent with these cases. See United States v. Paul, 

, 995 n.2, 1001 (8th Cir. 2000), cert. denied, 

(2001). There was no
plain error.

       Bolden next contends that, even if § 3592(c)(8) may apply to some bank
robbers, there was insufficient evidence that he killed Ley in the expectation of
pecuniary gain, rather than to eliminate an eyewitness and to escape from a botched
robbery. In reviewing the sufficiency of the evidence supporting an aggravating
factor, we “consider whether any rational trier of fact could have found the
aggravating circumstance beyond a reasonable doubt.” 

.

       We agree with Bolden that the pecuniary gain factor applies to a killing during
the course of a bank robbery only “where pecuniary gain is expected to follow as a
direct result of the murder.” 

; see 

;

. Bolden relies heavily on Bernard, but in that case
defendants killed the victims after a completed robbery and carjacking solely to
eliminate them as 

, 483-84. Here, by contrast, Bolden

                                          -6-
brought a loaded handgun to the bank planning to confront the bank guard before
robbing the bank. Price testified that, when he and Bolden returned to his house after
the failed robbery, Bolden “was mad that . . . we didn’t complete the bank robbery,”
said “that the guard was stupid,” and referred to the event as a “wasted trip.” These
statements were sufficient to permit a reasonable jury to find that Bolden shot Ley to
remove an obstacle to completing the robbery and that his intention was to continue
with the robbery once Ley had been removed. Thus, the killing was committed in the
expectation of receiving pecuniary gain. 18 U.S.C. § 3592(c)(8). Bolden also told
Price, “it was either shoot the guard or spend the rest of his life in jail.” But the statute
does not require that pecuniary gain be the only motive for a murder.

       Finally, Bolden argues that the pecuniary gain instruction allowed the jury to
find this factor based solely on his motive for the underlying robbery because the
district court refused to charge that pecuniary gain “was expected to follow as a direct
result of the murder.” The court instead instructed:

       To establish that a defendant committed the killing or murder in the
       expectation of the receipt of anything of pecuniary value, the
       government must prove that the defendant committed the killing or
       murder in the expectation of anything in the form of money, property, or
       anything else having some economic value, benefit or advantage.

This instruction accurately stated the law. Moreover, by substituting “the killing or
murder” for the reference to “the offense” in § 3592(c)(8), the instruction made clear
that the jury could not find this aggravating factor based solely on Bolden’s attempt
to rob the bank for pecuniary gain. See 

. The
district court did not abuse its wide discretion in formulating this instruction. See
United States v. Phelps, 

, 1057 (8th Cir. 1999) (standard of review).

      B. Prior Drug Distribution Offenses. The jury also found a second statutory
aggravating factor, that Bolden was previously convicted of two or more felony

                                            -7-
offenses “committed on different occasions, involving the distribution of a controlled
substance.” § 3592(c)(10). Bolden concedes that the government established one
prior offense, a 1995 Michigan conviction for delivery of cocaine. But he contends
that the second offense on which the government relied, a 1993 Michigan conviction
for “attempted possession with intent to deliver cocaine,” was not an offense
“involving the distribution of a controlled substance.” He argues, without citation to
case law or legislative history, that “Congress did not use the term ‘involving’ to
encompass convictions based on mere ‘attempts’ or ‘intents.’” The government
responds that the term, “offenses . . . involving distribution,” is not limited to actual
distribution offenses; it should be read to include offenses where drug distribution was
attempted but thwarted by police intervention. In this case, for example, the
government introduced the transcript of Bolden’s 1993 guilty plea hearing at which
he expressly admitted that he had intended to sell at least some of the crack cocaine
found in his possession.

       Reviewing the district court’s interpretation of statutory aggravating factors de
novo, we agree with the government. See United States v. Allen, 

, 786
(8th Cir. 2001) (standard of review), vacated and remanded on other grounds, 

(2002), decision on remand, 

(8th Cir. 2005) (en banc). We
construed the statutory term, “involving the distribution . . . of any controlled
substance,” in a former version of 18 U.S.C. § 924(c)(2) “as including more than the
crime[] of distribution.” United States v. Matra, 

, 843 (8th Cir. 1988).
Supporting that interpretation, the Supreme Court recently observed in construing 18
U.S.C. § 924(e)(2)(B), “An unsuccessful attempt to blow up a government building
. . . would ‘involv[e] [the] use of explosives.’” James v. United States, 

, 1592 (2007). Likewise, we conclude, the term “involving the distribution of a
controlled substance” in § 3592(c)(10) includes attempt offenses. Bolden’s contention
that the word “involving” in § 3592(c)(10) should be construed as excluding attempt




                                          -8-
offenses because the aggravating factors in §§ 3592(c)(2) and (4) expressly include
attempt offenses is unpersuasive.4

        Bolden further argues that the district court abused its discretion in admitting
testimony by a Michigan police officer detailing suspected drug trafficking activity
that preceded Bolden’s 1993 arrest and conviction for “attempted possession with
intent to distribute cocaine.” Bolden argues this permitted the jury to find the
§ 3592(c)(10) factor based upon uncharged conduct. (He does not argue that the
evidence was insufficient to support this finding or that the court erred in instructing
the jury.) The FDPA “erects very low barriers to the admission of evidence at capital
sentencing hearings.” United States v. Lee, 

, 494 (8th Cir. 2001), cert.
denied, 

(2002).5 Such a rule is necessary to ensure that the death
penalty phase produces “an individualized determination on the basis of the character
of the individual and the circumstances of the crime.” Zant v. Stephens, 

,
879 (1983) (emphasis in original). There was no abuse of discretion in admitting this
evidence.

      Finally, Bolden argues that § 3592(c)(10) is unconstitutional as applied in this
case because prior remote nonviolent drug offenses do not rationally narrow the class
of death-eligible defendants, as required by 

& n.15. We
disagree. Bolden cites no case in which a court invalidated a death-eligibility factor
because it failed to identify prior conduct of sufficient gravity. In 

       The James Court construed “involves use of explosives” in § 924(e)(2)(B)(ii)
as including the crime of attempt even though § 924(e)(2)(B)(i), the immediately
preceding subsection, expressly includes prior attempt convictions.
      5
       18 U.S.C. § 3593(c) provides: “[I]nformation may be presented as to any
matter relevant to the sentence . . . . regardless of its admissibility under the rules
governing admission of evidence at criminal trials except that information may be
excluded if its probative value is outweighed by the danger of creating unfair
prejudice, confusing the issues, or misleading the jury.”

                                          -9-
761, we held that the FDPA statutory factors “adequately narrow[] the class of persons
eligible for the death penalty,” observing that “how broadly or how narrowly the death
penalty should be applied as a punishment, if at all, is essentially a political choice left
to the people’s elected representatives in the legislative and executive branches.”
Congress has repeatedly enacted severe sentencing enhancements for recidivist drug
traffickers. See 21 U.S.C. § 841(b). We conclude that § 3592(c)(10) identifies
circumstances that reasonably justify imposition of a more severe sentence for
murder.6

                            IV. Penalty Phase Bifurcation

         As the plain language of §§ 3593(b)-(e) summarized at the start of Part III
makes clear, the FDPA contemplates a single penalty phase hearing at which all
relevant evidence is admitted and, if the defendant is found eligible for the death
penalty, ultimately weighed by the jury. A number of district courts have nonetheless
granted pre-hearing motions to bifurcate the penalty phase (or, as some have phrased
it, “trifurcate” the entire trial) into an “eligibility phase,” limited to evidence relevant
to mental state and to the existence of one or more statutory aggravating factors, and,
if the defendant is found eligible, a “selection phase,” at which evidence relevant to
mitigating factors and non-statutory aggravating factors such as victim impact and
other crimes is received and weighed by the jury. See, e.g., United States v. Natson,

, 1309 (M.D. Ga. 2006); United States v. Mayhew, 

        Even if the finding of the § 3592(c)(10) aggravating factor was not sustained,
only one statutory aggravating factor need be found. § 3593(d). We may not “reverse
or vacate a sentence of death on account of . . . any erroneous special finding of an
aggravating factor, where the Government establishes beyond a reasonable doubt that
the error was harmless.” § 3595(c)(2). As the evidence relevant to the Michigan drug
convictions was admissible in any event and the jury could have given this evidence
aggravating weight under the non-statutory aggravating factor “other criminal
conduct,” any error in submitting this statutory factor was harmless beyond a
reasonable doubt. See Brown v. Sanders, 

, 220 (2006).

                                           -10-
2d 936, 955-57 (S.D. Oh. 2005); United States v. Johnson, 

,
1099-1111 (N.D. Ia. 2005) (tried under 21 U.S.C. § 848, not the FDPA), aff’d
(without discussing this issue), 

(8th Cir. 2007); United States v. Jordan,

, 903-04 (E.D.Va. 2005); United States v. Davis, 

, 949 (E.D. La. 1996).

       In this case, Bolden filed a pretrial motion to bifurcate the penalty phase
hearing. He argued that the government’s evidence of other crimes was relevant only
to a non-statutory aggravating factor but would invite the jury to resolve the eligibility
issues, his mental state and the alleged statutory aggravating factors, based on his bad
character as evidenced by his criminal history. The district court denied the motion,
explaining that the jury would follow the court’s eligibility instructions. On appeal,
Bolden argues this issue very differently, asserting that the government’s extensive
victim impact evidence “enhanced the risk” that the jury would find him eligible for
death despite the government’s weak proof of either statutory aggravating factor. He
provides no citation to the voluminous record establishing that he made this argument
to the district court, either before or during the sentencing hearing.

         The government argues that bifurcation is statutorily impermissible.7 The only
circuit to address this issue under the FDPA concluded that the statute contemplates
but does not require a single penalty phase proceeding and encouraged district courts
ruling on motions to trifurcate “to consider carefully the ramifications of presenting
. . . evidence that would otherwise be inadmissible in the guilt phase . . . to a jury that
has not yet made findings concerning death eligibility.” United States v. Fell, 

, 240 n.28 (2d Cir. 2008). We agree that is a sound reading of the statute.




      7
       We note the government requested bifurcation in 

, to ensure the jury would consider at the selection phase hearsay evidence that
might be inadmissible under the Confrontation Clause at the eligibility phase.

                                           -11-
       As no case has held that bifurcation is mandatory, we think it obvious that the
ruling on a motion to bifurcate the penalty phase of an FDPA proceeding is reviewed
for abuse of discretion. Such a motion should not be routinely granted because it
further extends and complicates what is already a long and complicated proceeding.
Moreover, as this case illustrates, penalty phase evidence such as prior crimes may be
relevant to both statutory and non-statutory aggravating factors. See 18 U.S.C.
§§ 3592(c)(2)-(4), (10), (12), (15). In such cases, the risk of improper spillover will
be negligible if the jury is properly instructed and is in any event outweighed by the
risk of unnecessary protraction and confusion.

      Bolden moved to bifurcate based on the risk that other crimes evidence would
prejudice the jury’s consideration of eligibility issues. Bolden does not argue that risk
on appeal. Instead, he argues that the government’s victim impact evidence
“enhanced the risk,” an issue not pursued in the district court. In its final penalty
phase instructions, the court carefully instructed the jury:

      You many not consider the victim impact evidence in deciding the
      preliminary issues of whether the defendant is at least 18 years old,
      whether he acted with a mental state listed in Instruction No. 3, or
      whether any statutory aggravating circumstances in Instruction No. 4
      exists beyond a reasonable doubt. If you make the findings on those
      three preliminary issues which are required before the death penalty can
      be considered, you many consider the victim impact evidence . . . . You
      may not, however, permit the victim impact testimony to overwhelm
      your ability to follow the law.

Jurors are presumed to follow their instructions, and there is no indication in the
record that they did not do so. Shannon v. United States, 

, 584-85
(1994). The court did not abuse its discretion in denying the motion to bifurcate.




                                          -12-
                              V. Other Pretrial Issues

       A. Motion To Suppress. At a proffer interview in January 2003, Price told
investigators that Bolden hid the handgun used to shoot Ley under a gutter behind
Bolden’s rented residence. FBI Agent Terrence McGinnis left the interview, drove
to the residence, and entered the backyard. He saw a white plastic bag peeking out
from under a gutter, removed the bag, and found the murder weapon, a loaded .22
caliber revolver. Bolden argues the district court should have suppressed the handgun
because it was found during a warrantless search of his residence conducted without
the consent of Bolden or his landlord. The district court denied the motion to suppress
for lack of standing, that is, a subjective expectation of privacy in the exterior of his
former residence that was objectively reasonable. See United States v. Stallings, 

, 60 (8th Cir. 1994); United States v. Kiser, 

, 423 (8th Cir. 1991),
cert. denied, 

(1992).

       After a hearing, the district court found that Bolden’s landlord initiated eviction
proceedings when she heard of his arrest because he was delinquent on rent payments.
The eviction was final in November 2002, the landlord retook possession in early
December, and the residence was vandalized and robbed well before Price’s proffer
interview. Bolden argued that the landlord’s history of forgiving his rent deficiencies
and the fact that eviction notices were returned undelivered gave him a reasonable
expectation of privacy in the premises. The district court disagreed, noting that
Bolden knew he was facing eviction before killing Ley, yet made no attempt to
prevent eviction and asserted no continuing possessory interest in the residence after
his arrest:

      [T]he defendant’s lack of any possessory interest in the premises at the
      time of the search, his failure to exclude others from entering the
      premises, and his failure to take precautions to maintain privacy support
      the conclusion that the defendant had no subjective expectation of
      privacy and that no such expectation was objectively reasonable.

                                          -13-
The court’s finding that Bolden had no subjective expectation of privacy is not clearly
erroneous. See 

(standard of review). And on these facts, we
agree with the court’s legal conclusion that any subjective expectation of privacy in
the exterior of his former residence was not objectively reasonable. See United States
v. Hoey, 

, 892 (8th Cir. 1993); United States v. Rambo, 

,
1295-96 (8th Cir. 1986). The motion to suppress was properly denied.

      B. Motion To Quash a Venire Panel. During voir dire, the district court asked
whether any member of one panel had read or heard anything about Bolden’s alleged
crime. Prospective juror 168 responded:

      Close friend of mine works with the victim’s aunt. And when I was
      telling him about my jury duty here, he told me what she had told him
      about what happened and the family’s wishes and things like that.

He later stated, “I think what [my friend] told me may influence my decision . . .
[p]ossibly in the second phase, if there was a second phase.” Bolden made no
contemporaneous objection but later moved to quash the entire panel. The district
court denied the motion, noting the panel could not infer from 168’s statement that
Ley’s family favored the death penalty. The court struck 168 for cause. It later
instructed the jury:

      You are not to be influenced by the speculation concerning what
      sentence you think the victim’s family might wish to see imposed on the
      defendant. There is no evidence before you concerning what opinions
      the members of the victim’s family might have on what sentence is
      imposed. Indeed, there is no evidence that the family members of the
      victim have any opinions on the issue at all.

       On appeal Bolden argues the district court erred in refusing to quash the panel,
an issue we review for abuse of discretion. We agree with the district court that juror
168’s ambiguous, unsolicited statement did not so infect the panel with possible bias

                                         -14-
as to require that it be quashed. Bolden’s counsel spent portions of the next three days
exhaustively questioning each potential juror for bias and preconceptions. Moreover,
striking juror 168 for cause and cautioning the jury not to speculate about what
sentence Ley’s family might want were adequate protections against possible
improper prejudice. There was no abuse of discretion. See United States v. Rosnow,

, 411-12 (8th Cir. 1992), cert. denied, 

(1993).

                                VI. Guilt Phase Issues

       A. Separate trial of the Felon-in-Possession Charge. Prior to trial, Bolden
moved for a separate trial of the felon-in-possession count. See Fed. R. Crim. P.
14(a). The district court denied the motion, concluding that Bolden would not be
prejudiced by the joinder because a stipulation ensured that the jury would know only
the fact of his prior felony convictions, not the facts underlying those convictions, see
Old Chief v. United States, 

, 186-92 (1997), and because the court would
instruct the jury to consider each count separately.

        Bolden argues the court abused its discretion by denying separate trials. This
contention is without merit. As the district court noted, we have repeatedly upheld the
denial of this motion when the parties have entered into such a stipulation. See United
States v. Brown, 

, 980 (8th Cir. 1995), and case cited, cert. denied, 

(1996). Bolden cites no authority for his contention that trial courts have
a greater duty to grant separate trials in capital cases. Here, the district court
instructed the jury that it could not consider Bolden’s previous convictions when
determining whether the government proved the other counts. The court did not abuse
its discretion in denying separate trials. See United States v. Crouch, 

, 875
(8th Cir.) (standard of review), cert. denied, 

(1995).

       B. Testimony of Dominick Price. Bolden challenges three evidentiary rulings
arising out of government witness Price’s testimony. First, he contends that the
district court prejudicially limited cross-examination. On direct exam, Price testified
                                           -15-
that he and Edwards were childhood friends and Bolden persuaded the two younger
men to assist in the bank robbery. During cross exam, Price admitted he saw Edwards
in jail after their arrest and the two men fought. Bolden’s counsel asked Price to
elaborate, the government objected, and the district court sustained the objection,
explaining that the three men voluntarily committed the crime and it was irrelevant
whether Edwards and Price later became enemies while in jail. Bolden argues the
court abused its discretion because this testimony would have impeached Price’s
credibility and the government’s attempt to portray Price as remorseful.8

       “We will not reverse a trial court’s decision to limit cross-examination absent
a clear abuse of discretion and a showing of prejudice to the defendant.” United
States v. Purkey, 

, 753 (8th Cir. 2005) (quotations omitted), cert. denied,

(2006). As the district court noted, the relationship between Price and
Edwards after the crime was not relevant to Bolden’s guilt or his role in the offense.
Thus, the question is whether a reasonable jury would have gained a significantly
different impression of Price’s credibility had the court allowed Bolden to pursue the
proposed line of cross-examination. United States v. Beckman, 

, 524
(8th Cir. 2000). A review of the record persuades us that the answer to this question
is no. Bolden’s cross exam of Price was extensive (102 pages of the trial transcript).
The jury heard about Price’s drug dealings with Bolden and others, and Price’s prior
arrests for disturbing the peace, petty larceny, motor vehicle theft, assault, disturbing
the peace, and unlawful use of a firearm. There was no clear abuse of discretion.

       Second, Bolden argues that the district court abused its discretion in denying
his request for re-cross exam regarding possible coaching Price may have received
during an observed conversation with government counsel, or while the government’s
case agent was together with Price in a holding cell. Government counsel explained


      8
       His argument that this testimony was also relevant to penalty-phase issues was
not preserved in the district court and cannot survive plain error review. See Revels
v. Vincenz, 

, 877 (8th Cir. 2004), cert. denied, 

(2005).
                                          -16-
that, in the observed conversation, he declined Price’s offer to explain the incident
with Edwards in jail. Counsel explained that the case agent was in the holding cell
only because there was a problem removing Price’s shackles. When Bolden’s counsel
was unable to point out discrepancies between Price’s direct and redirect testimony,
or instances when his memory appeared to be refreshed or his answers shaded, the
district court denied the request. There was no abuse of the court’s wide discretion
to restrict re-cross exam, particularly when new matters have not been raised on
redirect. United States v. Ball, 

, 897 (8th Cir. 2007).

       Finally, Bolden argues that the district court erred by allowing Price to testify
to a legal conclusion. During cross exam, Price testified:

      [Defense counsel]: And didn’t you decide that you, Robert, and Corteze
      were going to split the money? Whatever was taken, was going to be
      split three ways?

      [Price]: Equally, yes.

      [Counsel]: Yes. All of you were going to be treated equally?

      [Price]: Yes, sir.

      [Counsel]: Because you were all equal participants?

      [Price]: Yes, sir.

On redirect, government counsel referred to this exchange and asked Price whether
he was an equal participant in the shooting of Ley. The district court overruled
Bolden’s objection that the question called for a legal conclusion, and Price answered,
“no.” On appeal, Bolden argues that this opinion testimony improperly allowed the
government to negate two statutory mitigating circumstances, that an equally culpable
co-defendant would not be punished by death, and that neither Price nor Edwards
would serve a death sentence or a life sentence for the offense.
                                         -17-
       Opinion testimony by a lay witness is not per se inadmissible, even if it
addresses an ultimate issue. Fed. R. Evid. 701, 704(a). Here, the government’s
inquiry was a fair response to the testimony elicited on cross exam because it
addressed the distinction between being “equal participants” in the planned robbery
and in the unplanned murder of Ley. “The trial court does not abuse its discretion by
allowing the use of evidence on redirect examination to clarify an issue that was
opened up by the defense on cross-examination -- even when this evidence would
otherwise be inadmissible.” United States v. Braidlow, 

, 783 (8th Cir.
1986). Moreover, the question did not elicit an improper legal opinion. While the
defense was no doubt pursuing a legal question, equal culpability, Price was testifying
from the lay perspective of equal sharing or participation. When the government went
further and asked Price whether he deserved the death penalty for his role in the crime,
the district court halted the inquiry. There was no abuse of the district court’s wide
discretion to control the scope of redirect examination. 

(standard of review).

        C. Agent McGinnis’s Notes. Prior to trial, the district court ordered that
government agents retain any rough notes that might concern Bolden’s case, and the
government agreed to provide Bolden with exculpatory information and any promises
made in exchange for witness testimony. See generally Giglio v. United States, 

(1972). At trial, FBI agent McGinnis testified that he took notes during the
portion of Price’s proffer interview he attended before proceeding to Bolden’s
residence, which contradicted the government’s pretrial claim that only two Assistant
United States Attorneys took notes during the proffer. Defense counsel complained
that, in failing to turn over McGinnis’s notes, the government violated both Brady v.
Maryland, 

(1963), and the Jencks Act, 18 U.S.C. § 3500(b). Government
counsel represented that he had not known the notes existed, had now reviewed the
notes, and concluded they contained no Brady materials. The district court ruled that
Bolden did not make a sufficient showing that the notes contained Brady or Jencks
Act materials. Bolden challenges that ruling on appeal.

                                         -18-
       (1) To establish a Brady violation, Bolden must show that the prosecution
suppressed material evidence favorable to the defense. United States v. Van Brocklin,

, 594 (8th Cir. 1997), cert. denied, 

(1998). Materiality
turns on “whether there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.”
Clay v. Bowersox, 

, 1000 (8th Cir. 2004) (quotation omitted), cert.
denied, 

(2005). Bolden argues the notes might contain exculpatory
information because there was a discrepancy between McGinnis’s testimony at a
pretrial hearing and his testimony at trial concerning whether Bolden told Price the
gun was hidden under a gutter at Bolden’s residence. Review of the notes, Bolden
argues, might have impeached Price’s trial testimony and “bolstered doubts that
Bolden was the gunman.” However, the alleged discrepancy is based upon a portion
of McGinnis’s cross exam during the pretrial hearing. McGinnis clarified the point
during redirect. Thus, viewed in total, McGinnis’s pretrial and trial testimony were
consistent. Bolden further argues that the notes could have exposed Price’s
motivations for testifying but offers no support for this supposition. The government
disclosed all promises it made to Price in exchange for his cooperation, and defense
counsel thoroughly cross-examined Price on the subject. Bolden failed to show that
the government suppressed material exculpatory evidence.9

       (2) As relevant here, the Jencks Act requires the government to produce, on
motion of the defendant after a government witness has testified, “a written statement
made by said witness and signed or otherwise adopted or approved by him” relating
to the witness’s testimony. 18 U.S.C. § 3500(e)(1). Here, McGinnis testified his
notes contained only statements made by Price. Thus, the notes were not a “statement
made by said witness,” and Bolden made no showing that Price signed the notes or


      9
        With little elaboration, Bolden also argues the government should have
provided all rough notes from police interviews of persons who witnessed the
shooting. This argument is without merit. He made no showing that any rough
interview notes even existed. Van 

.
                                       -19-
otherwise approved them. See United States v. Madrigal, 

, 782 (8th Cir.
1998). Accordingly, the district court correctly ruled that the notes were not subject
to review under the Jencks Act. See United States v. New, 

, 376-77 (8th
Cir. 2007) (“the purpose of the disclosure requirement is to assist the defense in cross-
examining the witness who made the statement, not with questioning some other
witness”). Bolden argues on appeal that the notes were Jencks Act material regarding
McGinnis’s investigation. That contention was not raised in the district court and
cannot survive plain error review. See United States v. Grajales-Montoya, 

, 363 (8th Cir.), cert. denied, 

(1997).

                          VII. Other Penalty Phase Issues

       A. Non-Statutory Aggravating Factors. After listing the statutory aggravating
factors, the FDPA provides that the jury “may consider whether any other aggravating
factor for which notice has been given exists.” 18 U.S.C. § 3592(c). In this case, the
government gave notice, the district court submitted, and the jury found three non-
statutory aggravating factors: obstruction of justice, other criminal conduct, and victim
impact. Bolden appeals these findings on various grounds. We review the district
court’s evidentiary rulings for abuse of discretion, 

, and
Bolden’s constitutional contentions de novo, 

.10

       (1) Obstruction of Justice. During the penalty phase, the government presented
evidence that Bolden lied to police after being arrested, threatened Price and Edwards
if they spoke about the crime, wiped prints off and hid the murder weapon, and told
Edwards to change his appearance. The government argued that this aggravating
factor was established by evidence that Bolden killed Ley to prevent him from
identifying Bolden and then obstructed the investigation by lying to the police and


      10
        The contention that the government violated his Fifth and Sixth Amendment
rights by failing to charge non-statutory aggravating factors in the indictment is
foreclosed by our decision in 

.
                                       -20-
other post-offense conduct. The jury found as a non-statutory aggravating factor that
Bolden obstructed a criminal investigation and that this factor supported imposition
of the death penalty.

        Bolden argues his post-offense conduct lacked sufficient relevance to whether
he should be sentenced to death. We disagree. Other courts have approved use of an
obstruction of justice non-statutory aggravating factor based upon post-offense
conduct. See, e.g., United States v. Higgs, 

, 322-23 (4th Cir. 2003)
(disposing of murder weapon, destroying physical evidence, and directing witnesses
to lie); United States v. Edelin, 

, 76-77 (D.D.C. 2001) (threatening
witnesses). This is consistent with the treatment of obstruction under the Sentencing
Guidelines. U.S.S.G. § 3C1.1. The district court did not err in submitting this non-
statutory factor based in part on Bolden’s post-offense conduct.

       Bolden further argues that basing this factor on the killing of Ley renders it
unconstitutionally vague because all murders eliminate a witness and therefore the
factor is only a rational aggravator if the witness is eliminated after the suspect’s
arrest. Again we disagree. The government presented evidence that, after
immobilizing Ley with the initial shot, Bolden paused a few seconds before firing the
fatal shot into Ley’s head, evidence the murder was motivated in part to prevent Ley
from identifying Bolden. Thus, the district court did not err in submitting this non-
statutory aggravating factor. Its relative weight was solely for the jury to decide.

       (2) Other Criminal Conduct. At closing argument, the government argued that
the jury should find “other criminal activity” as a non-statutory aggravating factor
based on Bolden’s conviction of non-capital offenses during the guilt phase --
conspiracy to commit bank robbery and being a felon-in-possession of a firearm -- and
on his 1993 Michigan conviction for resisting and obstructing a police officer. The
jury found this aggravating factor beyond a reasonable doubt and that it supported
imposition of the death penalty. It is well-established that the government may offer

                                        -21-
evidence of “other criminal acts” as a non-statutory aggravating factor. See 

and cases cited.

       Bolden argues that this non-statutory factor allowed the government to submit
the same evidence to support multiple aggravating factors, creating the risk that the
jury would give too much weight to the aggravating factors, thereby skewing its
weighing of the aggravating and mitigating factors in deciding whether to impose the
death penalty. Though the concern is legitimate, see Stringer v. Black, 

,
232-33 (1992), the Supreme Court has never held “that aggravating factors could be
duplicative so as to render them constitutionally invalid.” 

,
quoting Jones v. United States, 

, 398 (1999) (plurality opinion). The
government based the pecuniary gain statutory factor on Bolden’s desire to rob the
bank. It based the obstruction of justice non-statutory factor on his motive to kill Ley
to eliminate a witness. And it based the “other criminal activity” non-statutory factor
in part on his possession of a firearm while conspiring to rob the bank. “[T]he same
facts can support different inferences that form different aggravators.” 

. The district court properly instructed the jurors that in weighing the
aggravating and mitigating factors, they were not simply to count each factor and
reach a decision based on which number is greater; rather, they should individually
consider the weight and value of each factor before deciding whether a sentence of
death is justified. There was no unconstitutional duplication.

       Bolden further argues that, other than the conspiracy conviction, these crimes
lacked sufficient relevance to the decision. He cites no authority supporting the
assertion that the district court should have struck the other convictions on this
ground. The district court did not allow the government to introduce less relevant
aspects of Bolden’s criminal history, such as misrepresentations to his landlord and
employer, improperly received unemployment benefits, and multiple driving
violations. He argues that the Michigan convictions were too remote and allowed the
jury to consider unadjudicated drug trafficking. The record does not support this
assertion. The court struck testimony regarding drug sales in 1994 that were well
                                         -22-
before Bolden’s 1995 Michigan conviction.11 The government did not argue that the
Michigan drug offenses or their underlying conduct supported this non-statutory
factor, and the jury was instructed that these convictions could not constitute “other
crimes” for purposes of this factor. Moreover, in 

, we
affirmed admitting evidence of various unadjudicated offenses.

       (3) Victim Impact Evidence. “[T]he Eighth Amendment erects no per se bar”
to the admission of victim impact evidence and to prosecutorial argument on that
subject. Payne v. Tennessee, 

, 827 (1991). In the FDPA, Congress
provided that the government may introduce as a non-statutory aggravating factor
“victim impact evidence” including “oral testimony, a victim impact statement that
identifies the victim of the offense and the extent and scope of the injury and loss
suffered by the victim and the victim’s family, and any other relevant information.”
18 U.S.C. § 3593(a). Evidence “about the victim and about the impact of the murder
on the victim’s family is relevant to the jury’s decision as to whether or not the death
penalty should be imposed [and t]here is no reason to treat such evidence differently
than other relevant evidence is treated.” 

. However, admission
of evidence “so unduly prejudicial that it renders the trial fundamentally unfair”
violates the Due Process Clause. 

      Bolden contends that the district court erred by allowing sixteen victim impact
witnesses to testify during the penalty phase. He argues the testimony was
cumulative, unfairly prejudicial, and “left the jury one small step removed from actual
attendance at the victim’s memorial service.” He notes that sixteen witnesses far




      11
        His contention that the district court erred in denying a mistrial based on this
testimony is without merit. See 

(standard of review). The jury
is presumed to follow the district court’s prompt instruction to disregard the question
and answer. Richardson v. Marsh, 

, 206-07 (1987).
                                          -23-
exceeded the number this court has previously approved,12 and that their testimony
took up over 80% of the government’s penalty phase case-in-chief. Acknowledging
that no appellate court has vacated a federal death sentence on this ground, Bolden
asserts that no appeal has presented “the voluminous amount and prejudicial quality”
of impact evidence concerning a single victim.

       Bolden cannot challenge the victim impact testimony by Ley’s parents and
relatives. See 

. He contends that allowing Ley’s friends,
coworkers, and pastor to testify about Ley’s relationship with his girlfriend, career
aspirations, and the affect of Ley’s death on his parents inflamed the jury, leaving it
unable to fairly weigh the aggravating and mitigating factors. However, Ley’s
aspirations and relationships and the impact of his death on his family were highly
relevant to establishing this non-statutory factor. Though portions of this testimony
overlapped, we agree with the district court it was not so cumulative as to confuse the
issues or create unfair prejudice.13 Qualitatively, this evidence was similar to the
victim impact evidence we upheld in United States v. Johnson, 

, 977 (8th
Cir. 2007); United States v. Nelson, 

, 713-14 (8th Cir. 2003), cert.
denied, 

(2004); 

-79; and Simmons v. Bowersox,

, 1135 (8th Cir.), cert. denied, 

(2001).

       Bolden’s additional challenges to specific victim impact evidence are without
merit. Numerous witnesses read passages they wrote in a memorial journal. This was
probative of Ley’s character, not inflammatory, and substantially similar to evidence
deemed proper in other cases. See, e.g., 

; 

. The government played the tape of a 911 call from Ley’s girlfriend


      12
        In United States v. McVeigh, 

, 1216 (10th Cir. 1998), cert.
denied, 

(1999), 38 victim impact witnesses testified about 168 victims
of the Oklahoma City bombing.
      13
       The court observed near the end of the victim impact testimony that the
witnesses had been “restrained” and had done their best to control their emotions.
                                      -24-
requesting a police escort to the hospital on the afternoon he was killed. The
probative value of this evidence outweighed the risk of unfair prejudice because it best
captured the emotional impact of Ley’s death on his loved ones. Admission of a
collection of photographs taken at a memorial service held by the bank where Ley
worked, plus resolutions in Ley’s honor from the Missouri House of Representatives
and the St. Louis Board of Alderman, were relevant to Ley’s “uniqueness” as a human
being and the impact of his death, 

, and not so unduly
prejudicial as to render the trial fundamentally unfair. Finally, a co-worker who ran
to assist Ley when he was shot graphically described Ley’s condition and the impact
that experience had on the witness’s life. This was clearly admissible as the most
probative evidence of the effect of Bolden’s crime on his victim. It was undoubtedly
prejudicial, but not unfairly so.

        The district court placed few limits on Bolden’s mitigating evidence; he argued
thirty-two mitigating factors to the jury. See 

. The number of
victim impact witnesses alone does not establish unfair prejudice. After the sixteen
testified on Monday afternoon, Tuesday morning, and Wednesday morning, the jury
heard closing arguments and instructions on Thursday. After the court’s cautionary
instructions regarding victim impact testimony and a recess on Friday, the jury began
deliberations the following Monday. It returned the verdict on Tuesday, finding all
five aggravating factors and many of the thirty-two mitigating factors. This timing
does not suggest that the sentence was the product of passion rather than careful,
reasoned judgment.

       B. Mitigation Issues. The FDPA defines “mitigating factors” to include
“factors in the defendant’s background, record, or character or any other circumstance
of the offense that mitigate against imposition of the death sentence.” 18 U.S.C.
§ 3592(a)(8). Here, the district court submitted thirty-two distinct mitigating factors,
twenty-one of which were found to exist by at least one juror. Bolden argues that the
court erred by refusing to submit three additional factors: (a) “The execution of
Robert Bolden may not necessarily alleviate the victim’s or victim’s family suffering.”
                                          -25-
(b) “Robert Bolden’s execution will cause his family great emotional pain and
distress.” (c) “The sentence of life in prison without the possibility of release is an
adequate harsh alternative punishment that will protect society from further risk of
criminal conduct by Robert Bolden.” The court ruled that the record lacked evidence
to support the submission of these three factors.

       As to the first proposed factor, the government was precluded from eliciting
testimony concerning the Ley family’s desires for punishment. Parker v. Bowersox,

, 931 (8th Cir. 1999), cert. denied, 

(2000), and cases cited.
Thus, there was no evidence about the effect of Bolden’s execution on the Ley
family’s suffering. As to the second, Bolden elicited substantial testimony from his
children about his positive impact on their lives, and the district court submitted seven
mitigating factors related to Bolden’s positive impact on his family and their love for
him. Any additional instruction would have been duplicative. As to the third, it was
the province of the jury to decide whether life in prison was “an adequate harsh
punishment” for Bolden’s crimes. The government did not submit Bolden’s future
dangerousness as a non-statutory aggravating factor, which obviated any need for a
mitigating instruction whether life in prison would adequately protect society from the
risk of future criminal conduct.

       “Special instructions are necessary when the jury could not otherwise give
meaningful effect to a defendant’s mitigating evidence.” Abdul-Kabir v. Quarterman,

, 1668 n.14 (2007) (emphasis in original). Here, in addition to
submitting thirty-two factors, the district court instructed the jurors to consider any
“mitigating factors whether or not specifically argued by defense counsel which are
established by a preponderance of the evidence.” There was no abuse of the court’s
substantial discretion to fashion appropriate instructions.

       Bolden further argues that the district court placed unconstitutional limits on his
mitigation evidence. Prior to trial, the district court granted the government’s motion
in limine to prevent Bolden from introducing unsworn allocution evidence during the
                                           -26-
penalty phase without being subject to cross-examination. During the penalty phase,
he notified the government that mitigation witness John Wilson would testify that he
helped Bolden prepare a “statement of accountability” to explain his remorse to Ley’s
family and friends. The government objected, and the district court ruled that Bolden
could not introduce the statement nor have Wilson testify about assisting Bolden in
preparing it, as both constituted unsworn allocution. Bolden argues the court abused
its discretion because this ruling contravened the Eighth Amendment by preventing
him from introducing relevant mitigation evidence.

       The FDPA permits introduction of relevant mitigating evidence even if
inadmissible under the Federal Rules of Evidence, but “this does not mean that the
defense has carte blanche to introduce any and all evidence that it wishes.” 

. Among other limitations, the defendant “does not have a statutory
right to make statements to a jury during the penalty phase of an FPDA trial without
being subject to cross-examination.” 

Here, the district court did not abuse
its discretion in excluding an unsworn, unsigned, undated statement lacking any
indicia of reliability unless the government could cross examine Bolden about its
creation. We also note that Bolden elicited testimony about his post-offense remorse
from another mitigation witness.

       C. Penalty Phase Evidentiary Issues. (1) Bolden argues that the district court
abused its discretion by allowing the government to use a styrofoam head to illustrate
the trajectory of the bullets as they hit Ley during the testimony of a forensic
pathologist. Because the head was inflexible, he contends, it provided an arbitrary
basis for the jury to determine whether the shots were fired intentionally or
accidentally. After obtaining assurances that the pathologist would limit her use of
the demonstrative exhibit, the court ruled that use of the skull would not be unfairly
prejudicial and, alternatively, that any prejudice was outweighed by the probative
value of this evidence. There was no abuse of the court’s substantial evidentiary
discretion. United States v. Pirani, 

, 555 (8th Cir.) (en banc) (standard
of review), cert. denied, 

(2005).
                                         -27-
       (2) Bolden argues the district court abused its discretion by allowing the
government to ask mitigation witness Mona Muhammad if she was biased against the
government because her son was convicted of first degree murder following an
investigation by two case agents who investigated Bolden. Cross exam of a penalty
phase mitigation witness for bias is proper. 

. Moreover, Rule
611(b) of the Federal Rules of Evidence expressly allows cross exam concerning
“matters affecting the credibility of the witness.” We grant broad deference to the
district court’s determination of the appropriate scope of cross exam. United States
v. Crenshaw, 

, 1002 (8th Cir. 2004). Here, the inquiry did not create a
risk of unfair prejudice, confuse the issues, or mislead the jury. See § 3593(c).

       (3) During cross exam, the government asked Bolden’s aunt if she was aware
Bolden attempted to sell his daughters back to their mother for $5,000. Bolden
objected before the witness could answer. After a sidebar conference, the district
court sustained the objection and instructed the jury to disregard the question. On
appeal, Bolden argues the question was improper. As the district court granted the
relief he requested, no issue was preserved for appellate review.

       D. Penalty Phase Instruction Issue. Bolden first argues that the district
court’s preliminary instruction at the start of the penalty phase concerning the possible
penalties for his conviction on the felon-in-possession count misled the jury into
believing he might not serve the rest of his life in prison if not sentenced to death.
This contention is frivolous. The court’s thorough final instructions at the conclusion
of the penalty phase accurately stated the law and unambiguously instructed, with
respect to the bank robbery count: “if you determine that death is not justified . . . you
must record your determination that the defendant be sentenced to life imprisonment
without possibility of release,” as 18 U.S.C. § 2113(e) mandates.

       Bolden next argues that the district court erred in refusing to give a proffered
instruction reflecting his contention that, under § 3593(e), the jury is never required
to impose a sentence of death, even if it has found that the aggravating circumstances
                                          -28-
sufficiently outweigh the mitigating circumstances to justify a death sentence. We
have rejected this contention in many cases. See, e.g., 

;

-63. The district court’s instructions were consistent with the
FDPA as construed in these decisions. Moreover, the court’s instruction adequately
incorporated Bolden’s contention that the jury was not required to impose a death
sentence: “If you unanimously conclude that the aggravating factor or factors . . .
sufficiently outweigh the mitigating factor or factors . . . and that therefore death is the
appropriate sentence . . . you must record your determination that a sentence of death
shall be imposed” (emphasis added).

      E. The Mental State Gateway Issue. The FDPA provides that, for the
defendant to be eligible for a death sentence, the jury must find that he

       (A) intentionally killed the victim; (B) intentionally inflicted serious
       bodily injury that resulted in the death of the victim; (C) intentionally
       participated in an act, contemplating that the life of a person would be
       taken or intending that lethal force would be used . . . and the victim died
       as a direct result of the act; or (D) intentionally . . . engaged in an act of
       violence, knowing that the act created a grave risk of death . . . such that
       participation . . . constituted a reckless disregard for human life and the
       victim died as a direct result of the act.
18 U.S.C. § 3591(a)(2). Over Bolden’s objection, the district court submitted and the
jury found that Bolden had acted with all four mental states in committing both capital
offenses. Bolden argues that this enhanced the risk that jurors would inflate the
weight of mental state evidence during the penalty phase. We disagree.

       Numerous decisions have approved submission of multiple mental states in
FDPA cases. See United States v. Jackson, 

, 300-01 (4th Cir.), cert.
denied, 

(2003); United States v. Webster, 

, 323-24 (5th
Cir. 1998), cert. denied, 

(1999); United States v. Cheever, 

1181, 1199-1200 (D. Kan. 2006); 

. We agree
with these decisions. Here, as in Webster, the court instructed the jury to weigh the

                                           -29-
aggravating and mitigating factors with no mention of the “gateway” element of
intent.14 Moreover, the verdict form segregated the mental state inquiry from the
aggravating and mitigating factors and “made clear the sequential nature of the
process.” 

. Not every capital crime may support the
submission of all four mental states, but the district court did not err in concluding that
the evidence warranted submitting all four in this case.

       F. The Government’s Summation. Bolden argues that the government’s
“incendiary” penalty phase closing argument denied him a fair trial. He objects to
many portions of the argument, but none of the arguments made on appeal were
preserved with contemporaneous objections in the district court. Accordingly, our
review is for plain error. United States v. Robinson, 

, 1326 (8th Cir.),
cert. denied, 

(1997). To obtain relief, Bolden must show that an error
occurred, that it was plain, that it affected his substantial rights, and that it seriously
affected the fairness, integrity or public reputation of the judicial proceedings. To
show that an error affected his substantial rights, he must “demonstrate[] a reasonable
probability that he would have received a more favorable sentence with the . . . error
eliminated.” 

.

      Most of the arguments Bolden challenges were not improper. For example,
Bolden notes that the prosecutor repeatedly de-emphasized and belittled his proposed
mitigating factors, but “as long as the jurors are not told to ignore or disregard
mitigators, a prosecutor may argue, based on the circumstances of the case, that they
are entitled to little or no weight.” 

. The prosecutor did


      14
        Bolden relies on United States v. McCullah, 

, 1111-12 (10th Cir.
1996), cert. denied, 

(1997). McCullah is distinguishable because it
turned on the submission of duplicative aggravating factors that included mental state
components under 21 U.S.C. § 848(n), a different federal death penalty statute. The
Tenth Circuit has more recently held that duplication “between the gateway [intent]
factors and aggravating factors does not undermine the constitutional validity” of a
death sentence under the FDPA. 

.
                                         -30-
improperly ask the jury to impose the death penalty on behalf of the Ley family, an
argument for which there was no supporting evidence. Rather than object, Bolden
later requested an instruction that the jury not speculate about the family’s wishes.
The district court gave that instruction. After careful review of all the challenged
comments, we conclude they were isolated and insubstantial in context and far less
egregious than statements we have deemed harmless in other capital cases. See e.g.,

; 

. We conclude there was no plain
error and, alternatively, that Bolden has failed to establish plain error that substantially
affected his rights.

       For the foregoing reasons, the judgment of the district court is affirmed.

EBEL, Circuit Judge, concurring.

       I concur fully in the judgment and opinion of the court.

       I write separately only to address in greater detail Defendant-Appellant
Bolden’s argument pertaining to the application of one of the statutory aggravating
factors that the jury found in this case. Bolden argues that the statutory aggravator
that applies when a defendant “has previously been convicted of 2 or more State or
Federal offenses, punishable by a term of imprisonment of more than one year,
committed on different occasions, involving the distribution of a controlled
substance,” 18 U.S.C. § 3592(c)(10), does not apply to him. Bolden concedes that he
has one such conviction for distributing cocaine. But Bolden argues that the second
conviction on which the Government relied—a 1993 Michigan conviction for
attempted possession of drugs with the intent to distribute—does not qualify.

       Of course, possession of drugs with the intent to distribute is a crime “involving
the distribution of a controlled substance.” See United States v. Matra, 

,
843 (8th Cir. 1988), abrogated on other grounds, United States v. McKinney, 

, 133 (8th Cir. 1997). It is, however, a more difficult issue whether this statutory
                                          -31-
aggravator includes a conviction for the attempt to possess drugs with the intent to
distribute.

       There is, as far as I can tell, no published case law interpreting and applying this
statutory aggravating factor. The language of this aggravator is certainly broad
enough to include attempts to commit the crime of distribution of a controlled
substance because it contains the very inclusive word “involving”—“involving the
distribution of a controlled substance.” (Emphasis added.)

       Further support for the inclusion of attempted possession with the intent to
distribute drugs in this aggravator may be found in the Supreme Court’s reasoning in
James v. United States, 

, 

(2007). James applied, not the
Federal Death Penalty Act (“FDPA”), but the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). 

. Nevertheless, the ACCA provides a
relevant analogy to the case here because the ACCA similarly includes statutory
provisions that expressly include attempt offenses, and those that do not. In particular,
the ACCA defines a violent felony under that Act to include

      any crime punishable by imprisonment for a term exceeding one
      year . . . that—

             (I) has as an element the use, attempted use, or threatened
             use of physical force against the person of another; or

             (ii) is burglary, arson, or extortion, involves use of
             explosives, or otherwise involves conduct that presents a
             serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). Like the FDPA’s statutory aggravators,
the ACCA thus expressly includes attempt offenses in one section, but does not
mention them in the very next section of the statute. Nevertheless, the James Court
rejected the argument that, because Congress expressly included attempts in one
                                           -32-
section, attempt offenses could not be included in the next section. See 

. In its discussion of this issue, James concluded in dicta that the
statutory language addressing an offense that “involves use of explosives” is broad
enough to include an attempt offense: “An unsuccessful attempt to blow up a
government building . . . would involve the use of explosives.”15 

(quotation, alterations omitted).

       But when one considers the whole of the statutory aggravating factors set forth
in the FDPA, an argument can be made that § 3592(c)(10) does not encompass a
conviction for the attempt to possess drugs with the intent to distribute. Of the sixteen
statutory aggravating factors available under § 3592(c), four aggravators expressly
include attempted offenses. See 18 U.S.C. § 3592(c)(1) (“The death, or injury
resulting in death, occurred during the commission or attempted commission of, or
during the immediate flight from the commission of” one of twenty enumerated
federal felonies.) (emphasis added); 

(“[T]he defendant has previously
been convicted of a Federal or State offense punishable by a term of imprisonment of
more than 1 year, involving the use or attempted or threatened use of a
firearm . . . against another person.”) (emphasis added); 

(“The
defendant has previously been convicted of 2 or more Federal or State offenses,
punishable by a term of imprisonment of more than 1 year, committed on different
occasions, involving the infliction of, or attempted infliction of, serious bodily injury
or death upon another person.”) (emphasis added); 

(“The defendant


      15
        The specific issue James addressed was whether a prior conviction for
attempted burglary was a violent felony under the ACCA. 

. In
that case, the parties agreed that attempted burglary did not fall within either
§ 924(e)(2)(B)(i) or § 924(e)(2)(B)(ii)’s enumerated offense of burglary. See 

. The James Court held that attempted burglary fell within
§ 924(e)(2)(B)(ii)’s residual language as an offense that “otherwise involves conduct
that presents a serious potential risk of physical injury to another.” See 

. In reaching this conclusion, James noted the breadth of the
language of that residual clause. See 

                                          -33-
intentionally killed or attempted to kill more than one person in a single criminal
episode.”) (emphasis added). The language specifically including attempts in these
four statutory aggravating factors and the conspicuous absence of attempt in the other
aggravators suggests that Congress knew how to include attempt offenses when it
intended to do so.16

       Moreover, two of these aggravators, 18 U.S.C. § 3592(c)(2) and (4),
specifically use both the terms “involving” and “attempt” together in the same
provision. This further suggests that Congress did not intend its use of the word
“involving” automatically to include attempt offenses.

       “The long established plain language rule of statutory construction requires
examining the text of the statute as a whole by considering its context, object, and
policy.” United States v. Boesen, 

, 846 (8th Cir. 2008) (quotation
omitted). “Where Congress includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally presumed that Congress acts
intentionally and purposefully in the disparate inclusion or exclusion.” Russello v.
United States, 

, 23 (1983) (quotation, alteration omitted); see also United
States v. Sampson, 

, 212-14 (D. Mass. 2004) (applying FDPA and
concluding that, because Congress required that the defendant act knowingly in order
for some of the statutory aggravators to apply, but did not expressly include a


      16
         Congress wrote two other statutory aggravating factors using language broad
enough to encompass convictions for both attempted and completed offenses. See
18 U.S.C. § 3592(c)(3) (“The defendant has previously been convicted of another
Federal or State offense resulting in the death of a person, for which a sentence of life
imprisonment or a sentence of death was authorized by statute.”); 

(“The defendant had previously been convicted of violating title II or III of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 for which a sentence
of 5 or more years may be imposed or had previously been convicted of engaging in
a continuing criminal enterprise.”). Congress chose not to draft the aggravating factor
at issue here in that same fashion.
                                          -34-
knowledge requirement in 18 U.S.C. § 3592(c)(11), applying when the victim was
“particularly vulnerable due to old age, youth, or infirmity,” Congress did not then
intend to require proof that the defendant knew that his victim was vulnerable before
that aggravating factor could apply).

       But it is not apparent to me why Congress would expressly include attempt
offenses in some of the FDPA’s statutory aggravating factors, but not others. And
neither party points us to any legislative history that might better explain this seeming
inconsistency. It may be that Congress intended to include attempts when the offenses
at issue were particularly serious as, for example, offenses involving violence and
weapons. But Congress has also often indicated that drug trafficking is serious
criminal conduct. On the other hand, the difference in terminology could be explained
by the fact that the statutory aggravators in § 3592 were often lifted from other
pre-existing statutes, and additional aggravators were added to this section over the
years. Thus, the various aggravators often come from different sources and their
different language may simply be a consequence of this mixed pedigree with no actual
significance intended by Congress between various phraseologies used.

        Where a criminal statute is ambiguous, the rule of lenity requires us to give the
defendant the benefit of the doubt. See United States v. Santos, 

, 2025
(2008) (plurality) (noting that, “[u]nder a long line of our decisions, the tie must go
to the defendant. The rule of lenity requires ambiguous criminal laws to be interpreted
in favor of the defendants subjected to them”). And the rule of lenity “applies to
sentencing as well as substantive [criminal statutory] provisions.” Rowe v. Lockhart,

, 461 (8th Cir. 1984); see United States v. Allen, 

, 767, 769
(8th Cir. 2001) (discussing rule of lenity in addressing claim that multiple sentences
of life in prison and death for the same underlying offense amounted to double
jeopardy, but concluding rule of lenity did not apply in that case), cert. granted and
judgment vacated, 

(2002); cf. 

(discussing rule
of lenity, but not applying it in that case to overturn thirty-year sentence for attempted
capital murder).
                                             -35-
       Nevertheless, I am ultimately persuaded that § 3592(c)(10) is not ambiguous,
and that that aggravating factor does encompass Bolden’s prior conviction for the
attempted possession of drugs with the intent to distribute, for several reasons. First,
no persuasive reason is apparent to me why Congress would have intentionally desired
to exclude attempts under § 3592(c)(10) but to include attempts under many of the
other aggravators. Thus, to give meaning to the differences in language between the
various aggravators in § 3592(c) would be rank speculation. I do not believe rank
speculation should trump the language of § 3592(c) standing alone. Second, James,
in a different context, indicated that the fact that Congress expressly included
attempted offenses in one subsection of a statute but not in another subsection did not
mean that attempted convictions could not be included in a subsection lacking an
express reference to attempt. 

. Third, the language
Congress used in § 3592(c)(10)—prior convictions “involving the distribution of a
controlled substance” (emphasis added)—is very broad language that would naturally
encompass attempts to possess a controlled substance with the intent to distribute.
Indeed, as James made clear, the word “involving” has explicitly been applied to
include attempts. In James, the Court in dicta said that an unsuccessful attempt to
blow up a government building would constitute a violent felony under the clause in
18 U.S.C. § 924(e)(2)(B)(ii) that reads, “involves the use of explosives.”

      For these reasons, I agree that § 3592(c)(10) encompassed Bolden’s prior
conviction for the attempted possession of drugs with the intent to distribute.
                       ______________________________




                                         -36-