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 robbed.

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 jurors found nine mitigating factors.2 See § 3592. The court 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 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 examination.3

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 instruction requiring the jury to apply some burden of proof to this evidence rendered the death sentence unreliable.

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.6

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 phase.

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 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-witness.

6. The court lacked authority to order Webster to undergo a government psychiatric exam as a condition to admitting psychiatric testimony in mitigation of punishment.

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 claims.

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 instructed 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 seriously impairs the presentation of an effective defense. United States v. Garcia Abrego, 141 F.3d 142, 153 (5th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 182, 142 L.Ed.2d 148 (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.

a.

Webster's reasoning hinges on Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (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.

b.

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, 102 S.Ct. 3368; Tison, 481 U.S. at 158, 107 S.Ct. 1676. 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, 107 S.Ct. 1676. 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, 102 S.Ct. 3368. 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, 107 S.Ct. 1676.

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 culpability 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

c.

Furthermore, one of the FDPA's aggravating factors requires a jury to examine a factor that has nothing to do with the defendant's conduct or intent--the victim's vulnerability. See § 3592(c)(11); cf. Tuilaepa, 512 U.S. at 977, 114 S.Ct. 2630. 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 law.

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 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 factor--intent--in imposing the death penalty, skewing the process toward capital punishment.

Although Webster rightly points out the risk of unconstitutionally 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 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 place--with 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 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 process.

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 instructions, it did not weigh the elements of intent even once. The court did not abuse its discretion in denying the proffered instruction.

a.

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' aggravating 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."

b.

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 duplicative.

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 unfamiliarity.' " 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 instructions.4.

a.

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 premeditation 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.

b.

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 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 substantial 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 error.

c.

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, 110 S.Ct. 1441, 108 L.Ed.2d 725 (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 aggravating 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 constitutional 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 others.

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 Term, however, in Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (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 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 constitutionally relevant evidence. The court neither committed constitutional error nor abused its discretion in rejecting the mitigating factors.

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.

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 factor(s).

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 established 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.

a.

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, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964). Congress amended the Act in 1934 to encompass persons held "for ransom or reward or otherwise." Id. In Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 80 L.Ed. 522 (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." Id.

Webster asserts that we overruled Clinton in United States v. Osborne, 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 unconsenting 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 gravamen of the third element is the act of holding, not the benefit. If "otherwise" can include any purpose, adding it to the indictment--irrespective of whether it specifies the "otherwise" benefit--adds nothing. This view consists with that of our sister circuits.18

b.

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 all--and 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

c.

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. Correa-Ventura, 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 crime--why 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, 56 S.Ct. 395; Healy, 376 U.S. at 81-82, 84 S.Ct. 553. We should not circumscribe the statute's reach, once again giving the phrase a narrowing function, by requiring factual concurrence among the jurors.

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 statements.

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. Tompkins, 130 F.3d 117, 120 (5th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1335, 140 L.Ed.2d 495 (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, 95 S.Ct. 854, 43 L.Ed.2d 54 (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, 95 S.Ct. 854 (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (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 implicated. 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 circumstances. 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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Watson, 953 F.2d 895, 897 (5th Cir.1992). Their actions following 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, 88 S.Ct. 1868; 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 articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S.Ct. 1868. 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 constitutional authority to pat him down for their personal safety. Terry, 392 U.S. at 27-28, 88 S.Ct. 1868; 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. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (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 (1 1/2-hour) detention of which Webster complains.

Lengthy detentions following Terry stops are often problematic, 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, 92 S.Ct. 1921. 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, 94 S.Ct. 1234, 39 L.Ed.2d 771 (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 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, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991).

Second, Webster orally consented to this search. See Schneckloth v. Bustamonte, 412 U.S. 218, 235, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Such consent operates as a waiver of Fourth Amendment rights if, by a preponderance of the evidence, it is found to have been given voluntarily under the totality of the circumstances. See id. at 235-40, 93 S.Ct. 2041; 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 United States v. 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).

a.

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 unconstitutionally 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. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (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, 116 S.Ct. 1480. 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, 116 S.Ct. 1480 (quoting United States v. Chemical Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (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 constitutionality 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, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).

b.

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 under McCleskey fails to rebut the good faith presumption. Webster cites McCleskey, 481 U.S. at 293 n. 12, 107 S.Ct. 1756, 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, 107 S.Ct. 1756 (quotation omitted). The 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, 107 S.Ct. 1756. The verdict attests to the objective considerations, and Webster has made no effort to rebut them.

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, 116 S.Ct. 1480.

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 justification 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, 116 S.Ct. 1480.

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 requirements.

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 deterrence 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 effectiveness by revealing the Governments enforcement policy.

517 U.S. at 465, 116 S.Ct. 1480 (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.E.

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, --- U.S. ----, 119 S.Ct. 215, 142 L.Ed.2d 177 (1998); United States v. Johnston, 127 F.3d 380, 391 (5th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1174, 140 L.Ed.2d 183 (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 nondisclosure '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. Fisher, 106 F.3d 622, 634 (5th Cir.1997) (quoting Westley v. Johnson, 83 F.3d 714, 725 (5th Cir.1996), cert. denied, 519 U.S. 1094, 117 S.Ct. 773, 136 L.Ed.2d 718 (1997)).

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 Clay--the 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 used.

Clay also testified that he was cooperating with the government 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

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. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 government 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 hand over to the defense counsel all information associated 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 true--that the Federal Bureau of Investigation Special Agent assigned with primary responsibility for investigating this case took federal prisoner John Clay from his detention facility, transported him to the home of a female friend, and knowingly allowed Clay and the female to engage in sexual activities, 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, 105 S.Ct. 3375, 87 L.Ed.2d 481 (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 reg