Defendant-appellant Timothy J. McVeigh ("McVeigh") was tried, convicted, and sentenced to death on eleven counts stemming from the bombing of the Alfred P. Murrah Federal Building ("Murrah Building") in Oklahoma City, Oklahoma, that resulted in the deaths of 168 people. McVeigh appeals his conviction and sentence on the grounds that (A) pre-trial publicity unfairly prejudiced him, (B) juror misconduct precluded his right to a fair trial, (C) the district court erred by excluding evidence that someone else may have been guilty, (D) the district court improperly instructed the jury on the charged offenses, (E) the district court erred by admitting victim impact testimony during the guilt phase of trial, (F) the district court did not allow him to conduct adequate voir dire to discover juror bias as to sentencing, (G) the district court erred by excluding mitigating evidence during the penalty phase that someone else may have been involved in the bombing, (H) the district court erred by excluding mitigating evidence during the penalty phase showing the reasonableness of McVeigh's beliefs with regard to events at the Branch Davidian compound in Waco, Texas, and (I) the victim impact testimony admitted during the penalty phase produced a sentence based on emotion rather than reason. We affirm.

At 9:02 in the morning of April 19, 1995, a massive explosion tore apart the Murrah Building in Oklahoma City, Oklahoma, killing a total of 168 people and injuring hundreds more. On August 10, 1995, a federal grand jury returned an eleven-count indictment against McVeigh and Terry Lynn Nichols ("Nichols") charging: one count of conspiracy to use a weapon of mass destruction in violation of 18 U.S.C. § 2332a and 18 U.S.C. § 2(a) & (b); one count of use of a weapon of mass destruction in violation of 18 U.S.C. § 2332a and 18 U.S.C. § 2(a) & (b); one count of destruction by explosives in violation of 18 U.S.C. § 844(f) and 18 U.S.C. § 2(a) & (b); and eight counts of first-degree murder in violation of 18 U.S.C. §§ 1111 & 1114 and 18 U.S.C. § 2(a) & (b). On October 20, 1995, the government filed a Notice of Intent to Seek the Death Penalty. On December 1, 1995, this court granted a Petition for Writ of Mandamus by Nichols to recuse Judge Wayne Alley of the Western District of Oklahoma. In a December 4, 1995, Order, the Chief Judge of this court designated Chief Judge Richard P. Matsch of the District of Colorado to preside over future proceedings.

On February 19, 1996, the district court granted McVeigh's and Nichols' Motion for Change of Venue and transferred the case to Denver, Colorado. On October 25, 1996, the district court granted a Motion for Severance by McVeigh and Nichols and ordered that McVeigh's trial would proceed first. McVeigh's trial began with voir dire of prospective jurors on March 31, 1997. A jury of twelve with six alternates was sworn in by the district court on April 24, 1997, and opening statements commenced that same day. The government began presenting evidence the following day.

At the guilt phase of trial, which encompassed twenty-three days of testimony, the government proved the following set of facts.1 The destruction of the Murrah Building killed 163 people in the building and five people outside. Fifteen children in the Murrah Building day care center, visible from the front of the building, and four children visiting the building were included among the victims. Eight federal law enforcement officials also lost their lives. The explosion, felt and heard six miles away, tore a gaping hole into the front of the Murrah Building and covered the streets with glass, debris, rocks, and chunks of concrete. Emergency workers who reported to the scene made heroic efforts to rescue people still trapped in the building.

The Murrah Building was destroyed by a 3,000-6,000 pound bomb comprised of an ammonium nitrate-based explosive carried inside a rented Ryder truck. In the fall of 1994, McVeigh and Nichols sought, bought, and stole all the materials needed to construct the bomb. First, on September 30, 1994, and October 18, 1994, McVeigh purchased a total of 4,000 pounds of ammonium nitrate from the McPherson branch of the Mid-Kansas Cooperative using the alias "Mike Havens." Second, in October of 1994, McVeigh and Nichols stole seven cases of Tovex explosives and a box of Primadet nonelectric blasting caps from the Martin Marietta rock quarry near Marion, Kansas. Third, on October 21, 1994, McVeigh purchased three drums of nitromethane at a race track outside of Dallas, Texas. Prior to the nitromethane purchase, McVeigh had sought bomb ingredients, including nitromethane, both in person and through the use of a prepaid telephone calling card under the name "Daryl Bridges." Using various aliases, McVeigh and Nichols rented a number of storage lockers in Kansas where they stored the bomb components. In order to fund their conspiracy, McVeigh and Nichols robbed a gun dealer in Arkansas in November of 1994.

In a letter to Michael and Lori Fortier written around September of 1994, McVeigh disclosed that he and Terry Nichols had decided to take some type of positive offensive action against the federal government in response to the government's siege of the Branch Davidians in Waco, Texas in 1993. On a subsequent visit to their home, McVeigh told the Fortiers that he planned to blow up a federal building. McVeigh later informed the Fortiers that he wanted to cause a general uprising in America and that the bombing would occur on the anniversary of the end of the Waco siege. McVeigh rationalized the inevitable loss of life by concluding that anyone who worked in the federal building was guilty by association with those responsible for Waco.

McVeigh stated that he had figured out how to make a truck into a bomb using fifty-five-gallon drums filled with ammonium nitrate combined with explosives stolen from the quarry. McVeigh demonstrated the shaped charge be intended to use for the bomb by arranging soup cans on the floor in the same triangle shape in which he was going to place fifty-five-gallon barrels filled with ammonium nitrate combined with nitromethane in the truck. McVeigh also diagramed the truck, barrels, and fusing system on a piece of paper, and stated that he intended to use a Ryder truck. McVeigh told the Fortiers that he chose the Murrah Building as the target because he believed that (1) the orders for the attack at Waco emanated from the building, (2) the building housed people involved in the Waco raid, and (3) the building's U-shape and glass front made it an easy target. On a later trip through Oklahoma City, McVeigh showed Michael Fortier the Murrah Building, asking Fortier whether he thought a twenty-foot rental truck would fit in front of the building.

Also, towards the end of 1994, McVeigh typed a number of letters discussing the justified use of violence against federal agents as retaliation for the events in Waco. McVeigh told his sister and one of his friends that he had moved from the propaganda stage to the action stage in his dispute with the federal government. McVeigh then warned his sister that "something big" was going to happen in April, and asked her to extend her April 1995 Florida vacation. He also instructed her not to write to him any more lest she incriminate herself. The manner in which the bombing was carried out closely tracked several books bought by McVeigh, which he often encouraged his friends to read, describing how to make a powerful bomb mixing ammonium nitrate with nitromethane and romanticizing self-declared patriots who blow up federal buildings. McVeigh was familiar with explosives and had detonated a pipe bomb prior to the attack on the Murrah Building.

From April 14 to 18, 1995, McVeigh stayed at the Dreamland Motel located in Junction City, Kansas. On April 14, 1995, McVeigh purchased a 1977 yellow Mercury Marquis from Junction City Firestone in Junction City, Kansas. While waiting to take possession of the car from the dealer, McVeigh made a phone call using the Bridges calling card to Elliott's Body Shop ("Elliott's") in Junction City, Kansas, seeking a twenty-foot Ryder truck for a one-way rental to Omaha. McVeigh also called Nichols.

During the search of the blast site, the FBI located the rear axle of the Ryder truck used to carry the bomb. The vehicle identification number from the axle matched that of the Ryder truck rented to McVeigh by Elliott's on April 15, 1995, and picked up by McVeigh two days prior to the blast. McVeigh rented the truck under the name "Robert King" using a phony South Dakota drivers license that Lori Fortier had helped McVeigh create.

McVeigh drove to Oklahoma City in the rented Ryder truck, which he had made into a bomb, parking the vehicle in front of the Murrah Building and running to the yellow Mercury that he and Nichols had stashed as a getaway car in a nearby alley a couple of days before the bombing. A Ford key fitting the Ryder truck was found in an alley near where McVeigh had told Michael Fortier that the getaway car would be parked. McVeigh hand-printed a sign inside the yellow Mercury, "Not Abandoned; Please do not tow; will move by April 23 (Needs Battery & Cable)." McVeigh deliberately parked the car so that a building would stand between the car and the blast, shielding McVeigh from the explosion. The bomb then exploded.

Just 77 minutes after the blast, Oklahoma State Trooper Charles Hanger ("Hanger") stopped the yellow Mercury driven by McVeigh because the car had no license tags. The stop occurred between mile markers 202 and 203 on Interstate 35, just before the exit for Billings, Oklahoma, precisely 77.9 miles north of the Murrah Building. Before he was stopped by Hanger, MeVeigh was headed northbound away from Oklahoma City towards Kansas. A person driving the posted speed limit would have reached the point of the stop 75 minutes after leaving the Murrah Building. If McVeigh had left the Murrah Building right after the bombing, he would have arrived at the Billings exit around 10:17 a.m., the approximate time of the stop.

Hanger arrested McVeigh upon discovering that he was carrying a concealed, loaded gun. Hanger transported McVeigh to Noble County Jail in Perry, Oklahoma, where McVeigh was booked and incarcerated for unlawfully carrying a weapon and transporting a loaded firearm. Noble County authorities took custody of McVeigh's clothing and property, including earplugs, and issued him prison garb. Two days later, on April 21, 1995, the federal government filed a Complaint against McVeigh for unlawful destruction by explosives. Oklahoma then transferred McVeigh to federal custody on the federal bombing charges. An FBI test performed later found that McVeigh's clothing and the earplugs contained explosives residue, including PETN, EGDN, and nitroglycerine--chemicals associated with the materials used in the construction of the bomb.

A subsequent inventory search of the yellow Mercury uncovered a sealed envelope containing documents arguing that the federal government had commenced open warfare on the liberty of the American people and justifying the killing of government officials in the defense of liberty. Finally, three days after the arrest, Hanger found a Paulsen's Military Supply business card on the floor of his cruiser bearing McVeigh's fingerprints. McVeigh had written on the back of the card, "TNT @ $5/stick Need more" and "Call After 01, May, See if I can get some more."

Closing arguments were made on May 29, 1997, and the district court charged the jury on May 30, 1997. On June 2, 1997, after four days of deliberations, the jury returned guilty verdicts on all eleven counts charged in the Indictment. The penalty phase of trial commenced on June 4, 1997, and concluded with summations and jury instructions on June 12, 1997. The jury deliberated for two days before returning special findings recommending that McVeigh be sentenced to death. After denying McVeigh's motion for a new trial, the district court accepted the jury recommendation on August 14, 1997, sentencing McVeigh to death on all eleven counts. McVeigh filed a timely notice of appeal that same day. We have jurisdiction pursuant to 28 U.S.C. § 1291, 18 U.S.C. §§ 3742(a) & 3595, and Fed. R.App. P. 4(b).

McVeigh claims that he was denied due process of law under the Fifth Amendment and his right to trial by an impartial jury under the Sixth Amendment because the jury pool was flooded with negative pretrial publicity, especially media reports that he had confessed to his lawyers that he had committed the Oklahoma City bombing. McVeigh argues that the pretrial publicity amounted to both presumed and actual prejudice.

The two different types of prejudice claimed by McVeigh are subject to different standards of review. Presumed prejudice requires this court to evaluate the complained-of publicity, as well as the circumstances surrounding that publicity, and to determine whether a reasonable juror exposed to such publicity could remain impartial, or whether the publicity was of such a nature as to render impartiality impossible. See Sheppard v. Maxwell, 384 U.S. 333, 351-52, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); United States v. Abello-Silva, 948 F.2d 1168, 1176-77 (10th Cir.1991). The court of appeals undertakes this review of the overall circumstances of the publicity de novo. See Sheppard, 384 U.S. at 362, 86 S.Ct. 1507.

A claim of actual prejudice is subjected to a more deferential standard of review. See Stafford v. Saffle, 34 F.3d 1557, 1567 (10th Cir.1994); Abello-Silva, 948 F.2d at 1177. The determination of whether the seated jury could remain impartial in the face of negative pretrial publicity, and the measures that may be taken to ensure such impartiality, lay squarely within the domain of the trial court. See Mu'Min v. Virginia, 500 U.S. 415, 427, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991); Patton v. Yount, 467 U.S. 1025, 1039, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); Stafford, 34 F.3d at 1567. Therefore, we review the trial court's rulings in this regard for abuse of discretion. See Mu'Min, 500 U.S. at 427, 111 S.Ct. 1899; Abello-Silva, 948 F.2d at 1177.

As with the bombing itself, news of McVeigh's arrest received a great deal of attention in the media, and was ubiquitously reported on television, radio, and in print. The image of McVeigh being led, wearing orange jail clothing, through an angry crowd into a van by authorities appeared in print and electronic media nationwide. See United States v. McVeigh, 918 F.Supp. 1467, 1471 (W.D.Okla.1996). In its ruling granting McVeigh's motion for change of venue the district court noted that it had considered the alternative of moving the trial to Tulsa, Oklahoma, but because of the intensity of the emotional impact of the bombing, and its attendant publicity, on all Oklahomans, it would be impossible for McVeigh to receive a fair jury trial anywhere in the State of Oklahoma. See id. at 1470-74. The district court decided to move the trial to Denver, a large metropolitan area where a "large jury pool is available." See id. at 1474. In this ruling the district court implicitly found that the Denver jury pool was not as intensely affected by the bombing or the subsequent publicity as was the Oklahoma jury pool.

On February 14, 1997, the district court sent out jury summons to hundreds of people living in the Denver area, notifying them that they had been randomly selected as potential jurors for the McVeigh trial. The notification admonished its recipients to avoid publicity concerning the case that might interfere with their ability to remain impartial. The notification advised the potential jurors that "[t]here have been many things written and said about the explosion in Oklahoma City. Much of it may be speculation, rumor and incorrect information." The notification further stressed the need for all potential jurors to be impartial and willing to base their decision solely on the law and the evidence. The notification concluded with a short, preliminary questionnaire which included a question asking if "there is any ... reason that would prevent you from serving on this jury."

Two weeks later, on February 28, the Dallas Morning News published an article on its Internet home page claiming that it was in possession of internal, confidential defense documents that revealed McVeigh had confessed to his own lawyers that he had indeed bombed the Murrah Building in Oklahoma City. See Pete Slover, McVeigh saw 'body count' as best way to make statement in Oklahoma City bombing, defense reports state, (visited Feb. 28, 1997) . This story was picked up and reported by both the national and Denver news media. According to the reports, McVeigh had told his lawyers that he deliberately set off the bomb during the daytime in order to obtain a higher "body count"; that he had committed the bombing out of a desire to make a point to the federal government, presumably that the government mishandled the 1993 siege of the Branch Davidian compound near Waco, Texas; and that he was assisted in the bombing by Terry Nichols, with whom McVeigh had participated in a number of robberies in order to obtain money and supplies needed to create the bomb. See id.

On March 4, a chambers conference was held at which the court and parties discussed this development and whether the trial date, originally set for March 31, should be delayed. At this conference, McVeigh's counsel told the court that McVeigh did not want a continuance, but rather desired to go forward with voir dire and seating a jury.2

On March 11, Playboy Magazine published on its Internet web site an article that claimed to contain information from documents "lawfully obtained" from McVeigh's counsel. See Ben Fenwick, The Road to Oklahoma City (visited March 11, 1997) . This article differed from the Dallas Morning News article mainly in the scope of detail with which it describes McVeigh's alleged activities during the time leading up to the bombing and the alleged motivation for the crime. See id. As with the Dallas Morning News story, information contained within the Playboy article was widely disseminated in the national media, as well as in the Denver media. Soon after this, McVeigh filed a motion to dismiss the indictment or, in the alternative, to postpone the trial for a minimum of one year, due to the "presumed effects of recent publication ... of stories" that McVeigh had made incriminating statements. United States v. McVeigh, 955 F.Supp. 1281, 1281 (D.Colo.1997). The district court dismissed this motion, holding that "fair-minded persons" would not be "so influenced by anything contained in this recent publicity" that they could not remain impartial. Id. at 1283.

On March 19, 352 prospective jurors were summoned to the Jefferson County Fairgrounds to fill out an extended questionnaire. Before filling out the questionnaire the court commented that news reports of events are often inaccurate, that most people remain skeptical about such reports, and admonished the potential jurors to set aside all publicity surrounding the case as well as any "impressions or opinions" that they may have formed based upon media reports. The court also observed that the constitutional right to a fair trial "depends on the willingness of citizens to decide the case based entirely on the evidence that they see and hear at the trial.... That requires a commitment to set aside any preconceived impressions or opinions." After the potential jurors had completed the questionnaires, the court informed them that from that moment on they were required to follow "the same instructions that will be given to the jury selected in this case." The court ordered the prospective jurors "beginning right now to avoid any news reports of any kind or any communication or publication of any kind that concerns any issues related to the charges in this case."

McVeigh filed an interlocutory writ of prohibition with this court seeking an order "directing the district court to continue the trial for an indefinite period on grounds of prejudicial pretrial publicity." In re McVeigh, No. 97-1117, at 1 (10th Cir. Mar. 28, 1997) (unpublished order). We denied his petition, holding that because voir dire had not yet taken place any ruling on pretrial publicity was premature, given the trial court's "broad discretion in gauging the effects of allegedly prejudicial publicity and in taking responsive measures to ensure a fair trial." Id. at 3.

Voir dire commenced on March 31. Four of the seated jurors indicated either on the questionnaire or during voir dire that they had seen headlines or casually overheard reports of McVeigh's alleged confession, but in each case they indicated that their exposure was only superficial and that they were skeptical of the accuracy of the report. None of the rest of the seated jurors indicated that they had even heard about the alleged confession. Each of the seated jurors affirmed that he or she could remain impartial and decide the case based only on the facts presented in court.

a. Presumed Prejudice

As this court has held, the claim of presumed prejudice is "rarely invoked and only in extreme situations." Abello-Silva, 948 F.2d at 1177; see also Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 551-54, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Moreover, "[t]he defendant bears the burden of establishing that prejudice should be presumed." Stafford, 34 F.3d at 1566.

In order for the reviewing court to reach a presumption that inflammatory pretrial publicity so permeated the community as to render impossible the seating of an impartial jury, the court must find that the publicity in essence displaced the judicial process, thereby denying the defendant his constitutional right to a fair trial. See Sheppard, 384 U.S. at 342-45, 352-57, 86 S.Ct. 1507 (noting that "bedlam reigned at the courthouse during the trial" due to media's intrusive and pervasive presence in the courtroom, inflammatory news reports, often broadcast live from the courtroom, and media hounding of jurors and the defendant); Estes v. Texas, 381 U.S. 532, 577-80, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (Warren, C.J., concurring) (media invasion of courtroom pierced the constitutional shield normally provided to the defendant by destroying "the dignity and integrity of the trial process"); Rideau v. Louisiana, 373 U.S. 723, 725-27, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (repeated broadcast in defendant's small community of defendant's video taped "confession" to local authorities resulted in a "kangaroo court" that derailed due process and quashed any hope of fair trial in that locale); see also Stafford, 34 F.3d at 1566 (evaluating, on the issue of presumed prejudice, whether there was evidence of a "circus atmosphere or lynch mob mentality"); Abello-Silva, 948 F.2d at 1177 ("In cases like Estes, Rideau, and Sheppard, prejudice was presumed because the news media influence pervaded the proceedings, igniting extensive prejudice in the community.") (quotation omitted). In such cases, we simply cannot rely on " 'jurors' claims that they can be impartial" ' and declare the publicity to be prejudicial as a matter of law. Mu'Min, 500 U.S. at 429, 111 S.Ct. 1899 (quoting Patton, 467 U.S. at 1031, 104 S.Ct. 2885).

However, the bar facing the defendant wishing to prove presumed prejudice from pretrial publicity is extremely high. See Stafford, 34 F.3d at 1566 ("[Defendant] must establish that 'an irrepressibly hostile attitude pervaded the community.' This is a difficult standard, even in cases in which there has been extensive media coverage ....") (quoting Abello-Silva, 948 F.2d at 1176); see also Coleman v. Kemp, 778 F.2d 1487, 1537 (11th Cir.1985) ("[T]he presumptive prejudice standard recognized in Rideau is only rarely applicable, and is reserved for an extreme situation. In short, the burden placed upon the petitioner to show that pretrial publicity deprived him of his right to a fair trial before an impartial jury is an extremely heavy one.") (quotations and citations omitted); United States v. Cooper, 464 F.2d 648, 655 (10th Cir.1972) (" '[T]he mere fact of unfavorable publicity does not of itself raise a presumption of prejudice.... The prejudice must have manifested itself so as to corrupt due process.' ") (quoting Dennis v. United States, 302 F.2d 5, 8 (10th Cir.1962)). Indeed, despite the proliferation of the news media and its technology, the Supreme Court has not found a single case of presumed prejudice in this country since the watershed case of Sheppard.

McVeigh's claim of presumed prejudice fails to clear this high hurdle. The circumstances that led the Court to presume prejudice in Sheppard, Estes, and Rideau simply do not exist in this case. First, McVeigh's attempt to show presumed prejudice is substantially weakened by the fact that, unlike the defendants in Sheppard and Rideau, he did receive a change in venue, removing his trial from the eye of the emotional storm in Oklahoma to the calmer metropolitan climate of Denver. Second, mere television images of the defendant in prison garb being led through an angry crowd do not come close to the type of inflammatory publicity required to reach the disruptive force seen in Sheppard, Estes, and Rideau. For this reason, we focus, as does McVeigh in his briefs before this court, mainly on the prejudicial effect on the Denver jury pool of the publication of reports that McVeigh confessed the crime to his attorneys.3

The disclosure and publication of information obtained from documents purporting to contain confidential communications between an individual and his attorneys indicates a lack of self-restraint and ethical compass on the part of those individuals responsible for doing so. However, the fact that McVeigh's attorneys denied the validity of the confessions gave rise to publicly aired doubts of the accuracy of the reports, a fact that somewhat lessened the reports' prejudicial impact on the public mind. Indeed, the Dallas Morning News Internet article includes in its headline the following words: "Suspect's attorney disputes reliability of documents." Unlike Rideau, here there was no video taped broadcast of an actual confession. Nor was there a reproduction of a printed confession signed by McVeigh. In short, the publicity here did not contain an actual confession but only the second-hand or perhaps even third-hand or more unattributed hearsay report of a confession. Such an indirect report of a confession will have far less impact than the situation where the actual confession is broadcast. Cf. Mu'Min, 500 U.S. at 418, 430-31, 111 S.Ct. 1899 (press reports of "indications that [defendant] had confessed" did not preclude seating of an unbiased jury); Patton, 467 U.S. at 1029, 1040, 104 S.Ct. 2885 (same). The hearsay nature of the reports of McVeigh's confession, the publicized denial of the accuracy of those reports, the strong admonitions given by the court both before and after the publicity about the purported confession, the fact that a large number of the venirepersons summoned were not even aware of the reports of McVeigh's alleged confession, and the change of venue, all persuade us that the pretrial publicity of which McVeigh complains in this case did not "manifest[ ] itself so as to corrupt due process." Cooper, 464 F.2d at 655. Thus, it does not warrant a presumption of prejudice.4

b. Actual Prejudice

In reviewing for actual prejudice, we examine the circumstances of the publicity and the voir dire, and merely determine "whether the judge had a reasonable basis for concluding that the jurors selected could be impartial." Abello-Silva, 948 F.2d at 1177-78 (quotation omitted). Moreover:

Impartiality does not mean jurors are totally ignorant of the case. Indeed, it is difficult to imagine how an intelligent venireman could be completely uninformed of significant events in his community. "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."

Id. (quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)). What we must decide here is whether the district court abused its discretion in determining that the seated jury could disregard the adverse pretrial publicity and render an impartial verdict.5

We do not believe that the district court abused its discretion. Here, the district court went to great lengths to admonish all potential jurors to ignore the publicity surrounding the issues of the case. In fact, McVeigh does not argue that the district court failed to take strong measures to ensure juror impartiality, but rather takes the position that the district court's admonitions had the unintended effect of increasing the jury pool's interest in publicity about the case and informed potential jurors of the answers that would be expected of them if they hoped to get on the jury. The assertion that the court's admonitions had the unintended effect of increasing the venirepersons' interest in publicity may be tested by asking if an abnormally large number of venirepersons indicated having knowledge of the alleged confession. To the contrary, a significant number of venirepersons indicated that they had not heard the news of McVeigh's alleged confession, suggesting that the court's earlier admonitions to avoid publicity associated with the case had the desired effect.6 McVeigh's claim that the court's admonitions served to instruct already prejudiced would-be jurors how to mask that prejudice in order to get onto the jury calls for pure speculation. We could equally speculate that the court's admonitions--that it is normal for people to be affected by publicity, and that a "good juror" is expected to put any conclusions based upon that publicity aside--might encourage those who had formed an opinion based upon pretrial publicity to disclose that fact without fear of shame and to encourage them to agree to set those opinions aside. McVeigh's claim fails.

Moreover, each of the seated jurors in this case was asked if he or she could put aside media reports and decide the case only on evidence presented in court. Each responded that he or she could. Voir dire was by no means a hurried affair; each seated juror's voir dire accounted for an average of forty-eight transcript pages, or a period of an hour or so. The members of the jury pool were subjected to two screening questionnaires, individual questioning by the court, and questioning by counsel for both the government and McVeigh. Questioning by the court and the parties goes a long way towards ensuring that any prejudice, no matter how well hidden, will be revealed.

Finally, each of the four seated jurors who mentioned having heard something about McVeigh confessing also unequivocally stated that he or she nonetheless could keep an open mind about the case and would adjudicate it on its merits. Granted, the fact that potential jurors declare that they can remain impartial in the face of negative pretrial publicity is not always dispositive of the question. See Irvin, 366 U.S. at 727-28, 81 S.Ct. 1639.7 However, we give due deference to jurors' declarations of impartiality and the trial court's credibility determination that those declarations are sincere. See Mu'Min, 500 U.S. at 420-21, 431-32, 111 S.Ct. 1899; Patton, 467 U.S. at 1036-40, 104 S.Ct. 2885; Stafford, 34 F.3d at 1567-68; Abello-Silva, 948 F.2d at 1177-78; Cummings v. Dugger, 862 F.2d 1504, 1510 (11th Cir.1989). Unlike an appellate court, the trial court has the opportunity to make a first-hand evaluation of a juror's demeanor and responsiveness to voir dire questions in deciding impartiality issues. See Rosales-Lopez v. United States, 451 U.S. 182, 188-89, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (plurality opinion).

Because the district court repeatedly stressed the importance of avoiding the pretrial publicity concerning the case, because each of the seated jurors was individually questioned about his or her ability to set aside the effects that any exposure to pretrial publicity may have had, because each juror declared that he or she could remain impartial and decide the case on its merits, and because the district court was satisfied that each juror seated was sincere in that declaration, we hold that the district court did not abuse its discretion in determining that this jury could and would decide the case in a fair and impartial manner.B. JUROR MISCONDUCT

McVeigh contends that one of the jurors committed misconduct by deciding his guilt before the case was submitted to the jury. In analyzing this issue, we must decide two questions: first, whether the district court erred in not holding a hearing on this allegation of juror misconduct, and second, whether the district court erred in not dismissing the juror for the alleged misconduct.

The government has suggested that we review for plain error the question whether the district court should have held a hearing on the allegations of juror misconduct because the defense did not specifically request a hearing but instead asked only that the juror be excused. However, during a conference with counsel the court made it plain that it would not hold a hearing. Under the circumstances, the defense was not obligated to ask for a hearing. Consequently, we review for abuse of discretion the court's decision on how to handle the allegation of juror misconduct. See United States v. Bornfield, 145 F.3d 1123, 1132 (10th Cir.1998); United States v. Bradshaw, 787 F.2d 1385, 1390 (10th Cir.1986).

We also review for abuse of discretion the question whether this juror should have been excused from service. See Anderson v. Dun & Bradstreet, Inc., 543 F.2d 732, 734 (10th Cir.1976). However, the decision whether to excuse a juror rests on whether the juror can remain impartial, a matter of fact uniquely within the observation of the trial court. See United States v. Barone, 114 F.3d 1284, 1307 (1st Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 614, 139 L.Ed.2d 500 (1997).

During the morning of Monday, May 12, 1997, an alternate juror reported to the Clerk of the district court the substance of a discussion that had taken place in the jury room the previous Friday, May 9. The jurors had been conversing about who might be the alternates, and one juror said, "I hope I'm not the hold-out juror." In response, another juror said, "It wouldn't be very hard. I think we all know what the verdict should be."8

At the noon recess, after receiving the Clerk's report of the conversation, the judge gave the following instructions to the jury:

Members of the jury, we're going to recess again as usual for the hour-and-a-half lunch period. And I want to reemphasize what I've been saying each time when we recess about the extreme importance here of each of you maintaining an open mind with respect to the case and all aspects of it.

I know that at times that's difficult to do, because you're together and we keep you in a relatively confined area. And naturally, you talk about a lot of things, sometimes lightheartedly, bantering about this and that. And I suppose sometimes it's tempting to talk about the case and where we are in the case, what progress we have or have not made, when it may be given to you for decision.

All of those things are off limits, and I want you to know that. I can't tell you where we are in the case. This isn't a computer program. This is a human event, a trial. We can't tell you how long particular witnesses will be. And you can't at this point--and nobody else can--fit the testimony of any one witness into the case as a whole. Remember that we are hearing witnesses called by the Government. Defense has an opportunity to call witnesses. Some witnesses may seem to you as we go along more important than others. Don't let that happen, even in your own thinking. You have got to, every time we break here, put it at rest.

The reason for these breaks in part, of course, is of course to take lunch but also to give you some time to relax. Don't use that time to talk about anything in connection with this case. Don't speculate about it. Don't talk about it. Keep open minds. If you don't, you're violating the oath that you've taken to decide this case based on all of the evidence presented to you.

So even in jest, say nothing about in case [sic] among yourselves.

At the end of the day's proceedings, the judge again cautioned the jury, saying:

Members of the jury, we're going to recess, as usual, this being 5:00; and again, during the time of this recess, of course, you must be very careful to avoid anything that may appear in radio, television, newspapers, magazines, whatever, concerning the trial, today's testimony, anything that relates to the trial, knowing, of course, the importance of your holding true to your oath to be able to decide this case based on what happens in this room and also hold true to your obligation to keep open minds until you've heard it all. You recall back as long ago as the time that we talked with you during jury selection of the importance of this, and we have to hold you to that and your honor in following that. You're on an honor system.

And, you know, the honor system is all that I can rely on so that I don't sequester you. So it's very important. And a part of the honor system is that if any of you violate that in any way, others of you will tell me about it.

After the jury had been dismissed for the day, the judge then held a conference with counsel and informed them of the juror's report. The defense moved that the juror who commented "I think we all know what the verdict should be" be stricken from the jury. The government said it was satisfied with the court's curative instructions. It suggested, however, that if the court felt further measures were necessary it should first "call in" the juror. The court decided not to hold a hearing on the allegation and effectively denied the defense's motion to strike the juror.

a. Should the district court have held a hearing?

McVeigh first contends that the district court abused its discretion when it refused to hold a hearing on the alternate juror's allegations. Although this is a fairly close question, we conclude that the district court's refusal to hold a hearing was not an abuse of discretion.

As the case law makes evident, there are varying degrees of juror misconduct. The most serious cases of misconduct involve extraneous influences on the jury, such as jurors becoming privy to prejudicial information not introduced into evidence or having improper contacts with parties, witnesses, or third parties. See United States v. Resko, 3 F.3d 684, 690 (3d Cir.1993); see also Fed.R.Evid. 606(b) (allowing juror to testify after verdict only on question whether extraneous information was brought to jury's attention); United States v. Wacker, 72 F.3d 1453, 1466 (10th Cir.1995) (doubting that presumption of prejudice which applies to extraneous contacts would apply to communications among venirepersons). Generally, allegations of extraneous influences require the district court to hold a hearing. See Remmer v. United States, 347 U.S. 227, 229-30, 74 S.Ct. 450, 98 L.Ed. 654 (1954); United States v. Thompson, 908 F.2d 648, 651 (10th Cir.1990); United States v. Hornung, 848 F.2d 1040, 1045 (10th Cir.1988). However, even in cases involving such allegations, we have held that on rare occasions it is within the district court's discretion to refuse to hold a hearing when it can clearly be established that a hearing would not be useful or necessary. See United States v. Davis, 60 F.3d 1479, 1483-84 (10th Cir.1995) (hearing unnecessary when district court already had sufficient facts to know the extent of the extraneous contact); United States v. Rosales, 680 F.2d 1304, 1306 (10th Cir.1981) (no abuse of discretion to decline to hold a hearing when there was no evidence that any juror other than the one discharged heard the extraneous remarks).

Unlike cases concerning extraneous influences, this case involves an allegation of intrajury misconduct, specifically the allegation that a juror had reached a premature conclusion regarding McVeigh's guilt. Although premature discussions among jurors may prejudice the defendant, see Resko, 3 F.3d at 689-90, intrajury misconduct generally has been regarded as less serious than extraneous influences on the jury. See United States v. McClinton, 135 F.3d 1178, 1186 (7th Cir.1998), cert. denied, --- U.S. ----, 118 S.Ct. 2308, 141 L.Ed.2d 167 (1998), petition for cert. filed (U.S. June 30, 1998) (No. 98-5078); United States v. Williams-Davis, 90 F.3d 490, 505 (D.C.Cir.1996), cert. denied, 519 U.S. 1128, 117 S.Ct. 986, 136 L.Ed.2d 867 (1997); United States v. Bertoli, 40 F.3d 1384, 1394 (3d Cir.1994); Resko, 3 F.3d at 690; United States v. Tierney, 947 F.2d 854, 869 (8th Cir.1991); United States v. Harris, 908 F.2d 728, 733 (11th Cir.1990); United States v. Webster, 750 F.2d 307, 338-39 (5th Cir.1984). Consequently, an allegation of intrajury misconduct may or may not warrant a hearing. See Bradshaw, 787 F.2d at 1389-90 (declining to adopt per se rule that a hearing was required and finding no abuse of discretion in declining to hold a hearing); see also United States v. Abrams, 137 F.3d 704, 708 (2d Cir.1998) (per curiam) (holding no abuse of discretion in dealing with alleged intrajury misconduct by means of a curative instruction rather than a hearing and noting the risk that a hearing might unduly emphasize the problem), petition for cert. filed, 66 U.S.L.W. 3791 (U.S. May 26, 1998) (No. 97-1979); United States v. Stafford, 136 F.3d 1109, 1112 (7th Cir.1998) (same), petition for cert. filed (U.S. June 8, 1998) (No. 97-9408); Harris, 908 F.2d at 733-34 (deferring to trial judge's decision in one instance to hold only a limited hearing and in another not to hold a hearing due to ambiguity of juror remarks); United States v. Read, 658 F.2d 1225, 1241 (7th Cir.1981) (strong cautionary instruction to jury that had seemingly made up its mind prior to conclusion of trial was proper exercise of discretion); United States v. Panebianco, 543 F.2d 447, 457 (2d Cir.1976).

"Courts face a delicate and complex task whenever they undertake to investigate reports of juror misconduct or bias during the course of a trial." United States v. Thomas, 116 F.3d 606, 618 (2d Cir.1997). In determining whether the allegation is sufficiently serious to warrant a hearing, the district court must consider "the content of the allegations, including the seriousness and likelihood of the alleged bias, and the credibility of the source." United States v. Jones, 707 F.2d 1169, 1173 (10th Cir.1983) (citation omitted). Ultimately, the court must weigh the benefits of having a hearing, including the ability perhaps to ascertain more fully the extent and gravity of the possible prejudice, against the risks inherent in interrupting the trial and possibly placing undue emphasis on the challenged conduct. See Bertoli, 40 F.3d at 1395; Harris, 908 F.2d at 734; United States v. Chiantese, 582 F.2d 974, 980 (5th Cir.1978).

Here, the district court already knew much of the information that a hearing would have provided, including who made the statement, what was said, and the general circumstances surrounding the statement. Cf. Resko, 3 F.3d at 690-91 (holding that the district court abused its discretion in failing to hold a hearing where the presence or absence of juror prejudice could not be determined on the existing record). The only facts that the judge did not know here was what exactly the juror meant by the statement, who overheard the statement, and how it was interpreted by any juror who may have overheard it. These are admittedly important considerations. However, in United States v. Day, 830 F.2d 1099, 1104 (10th Cir.1987), we held that a district court "armed only with the undisputed content of the conversation, had an adequate basis to find, as a matter of law, that no prejudice resulted" without having examined the juror who participated in the conversation.

Here, several factors probably influenced the district court in its decision not to hold a hearing, but rather to address the problem with strong curative instructions. Foremost, such a proceeding may have drawn undeserved attention to the remark. Further, the court, from its own observations, was under the impression that the juror who allegedly made the remark generally followed the court's instructions and typically nodded his head in agreement while instructions were given, so that the court's alternative remedy of giving strong curative instructions was reasonably calculated to correct the problem. We are less likely to find an abuse of discretion where a district court implements reasonably effective alternative measures even though it does not hold a hearing. See Abrams, 137 F.3d at 708-09; Read, 658 F.2d at 1241; Panebianco, 543 F.2d at 457. The district court's curative instructions reminded the jurors that they had the duty to report any juror misconduct. The record does not suggest that the court received any further reports of misconduct, so it would appear that the instructions were effective.

We hold that under these circumstances the district court did not abuse its discretion in declining to hold a hearing on the allegation of juror misconduct. As a caveat to the courts of this circuit, though, we note that "[w]hen a party's suggestion that a jury is biased is not frivolous, the district court ordinarily should undertake an adequate inquiry into the questions of whether the bias actually existed and whether it was prejudicial." Bradshaw, 787 F.2d at 1390 (quotation omitted). Here, holding a hearing would have been preferable so that the record would be clear whether the juror even made the comment, and if so, what he meant by it and who heard it. However, we are limited to reviewing the district court's decision for abuse of discretion, rather than de novo, and thus we decline to find reversible error.

b. Should the juror have been excused?

Regardless of whether it held a hearing, the district court also had to decide whether the juror was so tainted as to deny the defendant his constitutional right to an impartial jury. See Davis, 60 F.3d at 1484.

The remark "I think we all know what the verdict should be" is on its face ambiguous. The district court interpreted the comment as a non-serious remark, but the statement may also reflect a premature conclusion regarding McVeigh's guilt. In any event, the very ambiguity of the remark is a reason to defer to the trial court's superior ability to evaluate the demeanor and conduct of the juror in gauging impartiality. See Harris, 908 F.2d at 734. On this record, we cannot find that the trial court was clearly erroneous in concluding that, upon receiving the curative instructions, the members of the jury remained impartial. See Wacker, 72 F.3d at 1467; Read, 658 F.2d at 1241. Thus, we find no abuse of discretion in allowing the juror to remain seated.

C. EVIDENCE OF ALLEGED ALTERNATIVE PERPETRATORS

McVeigh challenges the district court's decision to exclude two lines of evidence that McVeigh argues would suggest that persons connected with a white-supremacist, anti-government organization in Stillwell, Oklahoma, known as "Elohim City," were involved in the conspiracy to destroy the Murrah Building. McVeigh contends that the district court abused its discretion9 when it excluded as "not sufficiently relevant" both the proffered testimony from Carol Howe ("Howe"), an undercover government informant at Elohim City, and other proffered evidence that McVeigh argues would have shown the government suspended its independent investigation of Elohim City in the wake of McVeigh's arrest.

McVeigh argues that this ruling was based solely on the relevance standard of Rule 401. The government, however, argues that the court's ruling incorporates both the relevance standard of Rule 401 and the balancing required in Rule 403. The text of the court's ruling appears to favor the government's position, indicating that the court found some "relevance" under Rule 401, but not enough to be "sufficient" under Rule 403.

Generally, we review a district court's ruling on the relevance and potential prejudice of proffered evidence under the abuse-of-discretion standard. See United States v. Call, 129 F.3d 1402, 1405 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998). Furthermore, this circuit has never found a per se abuse of discretion simply because a trial court failed to make explicit, on-the-record findings for a decision under Federal Rule of Evidence 403 other than when the disputed evidence is offered pursuant to one of the specialized character evidence rules.10 See generally Navarro de Cosme v. Hospital Pavia, 922 F.2d 926, 931 (1st Cir.1991) (explaining that "it is understood that in Rule 403 decisions explicit findings need not always be made") (quotation omitted); 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5224, at 321 (1978) (noting that on-the-record findings are not required by Rule 403, but encouraged by commentators). See also Brown v. Southeastern Penn. Transp. Auth. (In re Paoli R.R. Yard PCB Litig.), 113 F.3d 444, 457 n. 8 (3d Cir.1997) (holding that Rule 403 "normally require[s] a district court to make explicit its reasoning," and that the rule imposes an "obligation" on trial courts "to perform this weighing process on the record," but excusing the lack of explicit findings in that case because of the procedural posture in which the court's ruling occurred).

Although the trial court should, of course, always make explicit findings to support its Rule 403 rulings, there may be occasions when the record is such that we can do our own de novo balancing of the Rule 403 factors without requiring a remand of that issue to the district court. See, e.g., Glass v. Philadelphia Elec. Co., 34 F.3d 188, 191 (3d Cir.1994) (holding that when a trial court fails to articulate its balancing of probativity and prejudice under Rule 403, an appellate court may, under appropriate circumstances, either "decide the trial court implicitly performed the required balance; or, if we decide the trial court did not, we undertake to perform the balance ourselves") (quotation omitted); Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 587 (6th Cir.1994); see also United States v. Graham, 83 F.3d 1466, 1473 (D.C.Cir.1996), cert. denied, 519 U.S. 1132, 117 S.Ct. 993, 136 L.Ed.2d 874 (1997).

Here, the district court failed to make an explicit record of its balancing of the Rule 403 factors. However, we may conduct a de novo balancing because the record contains a colloquy between the court and counsel that sheds considerable light on how the district court viewed the evidence. We conclude that even if there was probative value to McVeigh's proffered evidence, it was "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." See Fed.R.Evid. 403. Thus, there was no error in excluding such evidence.

Near the end of the trial's guilt phase, MeVeigh's defense counsel made an oral proffer during an in-chambers hearing concerning the defense's evidence of alternative perpetrators. This proffer focused on Howe's expected testimony concerning her various visits to Elohim City in 1994-1995.

Howe allegedly would have testified that during her trips to Elohim City, she met Dennis Mahon ("Mahon"), one of Elohim City's leaders, and that Mahon was a violent opponent of the federal government. Howe would have testified that Mahon instructed her in the preparation of napalm and had shown her various bomb components at Elohim City, including a tap, green fuse, black powder, bolts, a funnel, and a grenade shell. Mahon also discussed the availability and cost of the explosive Semtex, as well as his experience in building and exploding a 500-pound ammonium nitrate bomb under a truck in Michigan.

Howe's proffered testimony also promised to discuss Andreas Strassmeir ("Strassmeir"), another leader at Elohim City, who allegedly discussed acquiring bomb components for Elohim City. Howe was to testify that Mahon and Strassmeir had discussed targeting a federal building in either Oklahoma City or Tulsa, or an IRS building. Howe also was to testify about the appearance at Elohim City in the spring of 1995 of James Ellison, who had developed plans to bomb the Murrah Building in 1983 before he was imprisoned on unrelated charges. Furthermore, Howe would have testified about the affinity of the Elohim City members for the people killed in the government's siege of the Branch Davidian compound in Waco, Texas. Finally, two days after the bombing, Howe told federal agents that she allegedly had seen two brothers at Elohim City before the bombing who resembled the composite drawings of "John Doe 1" and "John Doe 2," the suspects originally sought by the government in the immediate aftermath of the bombing.11

Separately from Howe's testimony, McVeigh's counsel also offered to introduce copies of FBI and ATF reports that McVeigh argued would establish that the federal investigation into Elohim City was suspended after McVeigh was arrested.

McVeigh contends that this proffered evidence was relevant to two separate propositions: first, that there were other perpetrators of the bombing, and second, that the government's investigation of the bombing was "shoddy and slanted," with investigators allegedly overlooking exculpatory evidence after they became satisfied that McVeigh was the principal perpetrator.

After hearing the proffer, the district court ruled, "Well, we've had a number of disclosures concerning Mahon, Strassmeir, Elohim City and now some additional information from Carol Howe. But my ruling is that it's excluded, not sufficiently relevant to be admissible."

a. Relevance under Rule 401

Under the Federal Rules of Evidence, "[a]ll relevant evidence is admissible," subject to the limitations provided by the Federal Rules and other laws; any evidence "which is not relevant is not admissible." See Fed.R.Evid. 402. Thus, the threshold to admissibility is relevance. The scope of relevancy is bounded only by the liberal standard of Rule 401, which provides that evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See Fed.R.Evid. 401. As commentators have noted, Rule 401's definition of relevancy incorporates notions of both materiality and probativity. See 1 Kenneth S. Broun, et al., McCormick on Evidence § 185, at 774-75 (John William Strong ed., 4th ed.1992); Wright & Graham, supra, §§ 5164, 5165, at 37-38, 48-50.

As for materiality, under Rule 401 a fact is "of consequence" when its existence would provide the fact-finder with a basis for making some inference, or chain of inferences, about an issue that is necessary to a verdict. See Wright & Graham, supra, § 5164, at 42-43. As for the degree of probative value required under Rule 401, the rule sets the bar very low. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Amoco Rocmount Co. v. Anschutz Corp., 7 F.3d 909, 919 (10th Cir.1993). The rule establishes that even a minimal degree of probability--i.e., "any tendency"--that the asserted fact exists is sufficient to find the proffered evidence relevant. See Fed.R.Evid. 401. The Advisory Committee explained that the "any tendency" language establishes that the "standard of probability under the rule is 'more ...--probable than it would be without the evidence.' " See id. Adv. Comm. Notes (1972 Proposed Rules) (quoting Fed.R.Evid. 401).

b. Balancing under Rule 403

Even though evidence may meet the relevancy standard of Rule 401, a trial court still may exclude it on the grounds that its probative value--the evidence's probability of establishing a fact of consequence--is "substantially outweighed" by certain negative factors. See Fed.R.Evid. 403. Those factors include "unfair prejudice," "confusion of the issues," and "misleading the jury." See id.

The danger of "unfair prejudice" under Rule 403 is not simply the tendency of evidence to undermine a party's position. Rather, the prejudice that is "unfair" is prejudice arising from the tendency of proffered evidence to suggest to the jury that it should render its findings "on an improper basis, commonly, though not necessarily, an emotional one." See Fed.R.Evid. 403, Adv. Comm. Notes (1972 Proposed Rules).

The danger of "confusion of the issues" and "misleading the jury" arises when circumstantial evidence would tend to sidetrack the jury into consideration of factual disputes only tangentially related to the facts at issue in the current case. See United States v. Guardia, 135 F.3d 1326, 1331-32 (10th Cir.1998). The classic explanation of this danger comes from Dean Wigmore: "The notion here is that, in attempting to dispute or explain away the evidence thus offered, new issues will arise as to the occurrence of the instances and the similarity of conditions, [and] new witnesses will be needed whose cross examination and impeachment may lead to further issues." 2 John Henry Wigmore, Evidence § 443, at 528-29 (James H. Chadbourn rev., 1979).

In the course of weighing probative value and adverse dangers, courts must be sensitive to the special problems presented by "alternative perpetrator" evidence. Although there is no doubt that a defendant has a right to attempt to establish his innocence by showing that someone else did the crime, a defendant still must show that his proffered evidence on the alleged alternative perpetrator is sufficient, on its own or in combination with other evidence in the record, to show a nexus between the crime charged and the asserted "alternative perpetrator." See Matthews v. Price, 83 F.3d 328, 332 (10th Cir.1996). It is not sufficient for a defendant merely to offer up unsupported speculation that another person may have done the crime. Such speculative blaming intensifies the grave risk of jury confusion, and it invites the jury to render its findings based on emotion or prejudice.

Finally, after identifying the degree of probative value and adverse danger, courts exclude relevant evidence if the adverse dangers "substantially outweigh" the probative value. See Fed.R.Evid. 403.

c. Admissibility of Carol Howe's proffered testimony

Even if we assume that the proffered evidence had some marginal relevance, the Howe testimony cannot survive the balancing under Rule 403. First, we conclude that the probative value of such proffered testimony was slight because of its highly generalized and speculative nature. The fact that another group held similar anti-government views as did McVeigh and that some of its members expressed vague threats to bomb a variety of potential targets in Oklahoma, possibly including a federal building in Oklahoma City, says very little about whether this group actually bombed the Murrah Building. That others shared McVeigh's political views is a slender reed upon which to vault the dangers of unfair prejudice and jury confusion. Howe's alleged identification of "John Doe 1" and "John Doe 2" arguably increases the probative value of her other testimony. However, the composite sketches included no particular identifying features that would strengthen the significance of Howe's allegation of two matches. In fact, there are undoubtedly thousands of men across America who resembled the government's composite sketches. Finally, there was no evidence in this proffer, or in the record, that would establish a probative nexus between the alleged Elohim City conspiracy and the bombing of the Murrah Building.

In the face of the speculative probative value of Howe's testimony, we must confront the very real dangers of unfair prejudice and confusion of the issues. The Howe testimony presented a great threat of "confusion of the issues" because it would have forced the government to attempt to disprove the nebulous allegation that Elohim City was involved in the bombing. This side trial would have led the jury astray, turning the focus away from whether McVeigh--the only person whose actions were on trial--bombed the Murrah Building. It also presented a threat of "unfair prejudice" as it would invite the jury to blame absent, unrepresented individuals and groups for whom there often may be strong underlying emotional responses.

Thus, the district court did not err in excluding this testimony.

d. Admissibility of suspension of Elohim City investigation

McVeigh's additional claim of error involves the exclusion of FBI and ATF reports pertaining to the activities of the Elohim City group. McVeigh contends that the reports show that the government's investigation of Elohim City was "shoddy" and "slanted" because they allegedly show that the government failed to investigate other potential suspects once it focused on McVeigh.

McVeigh's argument runs aground on both his factual and legal premises. Factually, these reports simply do not support his claim that the government's investigation of Elohim City was shoddy or that the government prematurely terminated the investigation. To the contrary, the proffered reports suggest that the government actively pursued the potential connection between Elohim City and the bombing, and that this aspect of the bombing investigation remained open well after McVeigh became the primary focus. The reports suggest that the government was unwilling to send Howe back into Elohim City, as a confidential informant, because leaders of that group had begun to suspect her status and she had received warnings that she would be in danger if she returned to Elohim City. These details in the ATF and FBI reports do not in the slightest offer any probative evidence for McVeigh's unfounded speculation that the government's investigation was shoddy or prematurely terminated.

The legal premise of McVeigh's claim--that the quality of the government's investigation was material to his defense--also founders. Admittedly, the quality or bias of a criminal investigation occasionally may affect the reliability of particular evidence in a trial, and hence, the facts surrounding the government's investigation may become relevant. See Lowenfield v. Phelps, 817 F.2d 285, 291-92 (5th Cir.1987) (holding that it was a reasonable trial strategy to attempt to argue that "sloppy police work" tainted the chain of custody for certain guns seized by police and "set the stage for an argument that others were implicated in the murders"), aff'd on other grounds, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). However, in McVeigh's case, he failed to establish the requisite connection between the allegedly "shoddy" and "slanted" investigation and any evidence introduced at trial. There was no trial evidence whose reliability would have been undercut had McVeigh been able to prove his contentions about the Elohim City investigation. To have allowed McVeigh to put the government on trial because there might have been something more the government perhaps could have done with respect to the activities of the Elohim City group would inevitably divert the jury's attention from the issues of the trial. See United States v. Veal, 23 F.3d 985, 989 (6th Cir.1994) (upholding a trial court's refusal to allow a defendant to show that the government's investigation had been "sloppy" because "the jury would not be called upon to determine whether the government's investigation had been good or bad").

Under our system of criminal justice, the issue submitted to the jury is whether the accused is guilty or not guilty. The jury is not asked to render judgment about non-parties, nor is it normally asked to render a verdict on the government's investigation. The district court did not abuse its discretion, but rather is to be commended, in keeping the focus of the trial upon the issues properly before the jury.

D. CRIMINAL INTENT AND LESSER-INCLUDED OFFENSES

McVeigh argues that the district court improperly instructed the jury regarding the intent elements of the mass destruction crimes with which he was charged and that the district court erred in refusing to instruct the jury on lesser-included offenses for the mass destruction offenses and the first-degree murder charges. In particular, he contends that: (1) 18 U.S.C. § 2332a (1994) and 18 U.S.C. § 844(f) (1994) require the government to prove a specific intent to kill as an element of those crimes and the district court erred in failing to instruct on that element; (2) the district court erred in concluding that there are no lesser-included offenses to § 2332a and § 844(f) involving an intent of something less than a specific intent to kill; and (3) the district court erred in concluding that the evidence did not warrant giving instructions on second-degree murder as a lesser-included offense of first-degree murder.

Whether § 2332a and § 844(f) have as an element the specific intent to kill are questions of statutory construction, and so are reviewed de novo. See United States v. Agnew, 931 F.2d 1397, 1407 (10th Cir.1991). Whether § 2332a and § 844(f) have any lesser-included offenses are also questions of law and will be reviewed de novo. See United States v. Duran, 127 F.3d 911, 914 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1389, --- L.Ed.2d ---- (1998). We review for abuse of discretion whether the evidence warranted an instruction regarding second-degree murder as a lesser-included offense of first-degree murder. See id.

a. Criminal Intent on Mass Destruction Offenses

McVeigh contends that one of the elements of the mass destruction offenses charged in Counts I, II, and III is a specific intent to kill when the charge is that deaths were caused by a bombing. He argues that the district court should have construed 18 U.S.C. § 2332a and 18 U.S.C. § 844(f) as containing two levels of criminal intent, comparable to first-degree and second-degree murder, and as a result, the government should have been required to prove a specific intent to kill as an element of the crimes charged.

i. 18 U.S.C. § 2332a

Count I charged McVeigh with conspiring to use a weapon of mass destruction against persons in the United States and against property that was owned and used by the United States and by an agency of the United States, in violation of 18 U.S.C. § 2332a. Count II charged McVeigh with using and aiding and abetting the use of a weapon of mass destruction against persons in the United States, in violation of 18 U.S.C. § 2332a and 18 U.S.C. § 2.

The version of 18 U.S.C. § 2332a(a) in effect at the time of the bombing provided:

Offense.-A person who uses, or attempts or conspires to use, a weapon of mass destruction -

(1) against a national of the United States while such national is outside of the United States;

(2) against any person within the United States; or

(3) against any property that is owned, leased or used by the United States or by any department or agency of the United States, whether the property is within or outside of the United States,

shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.12

From the plain language of the statute, it is clear that "intent to kill" is not a statutorily required element of § 2332a(a). In fact, no level of intent is specified.

When Congress fails to specify the degree of criminal intent required for a statutory offense, courts will either read in a level of intent or hold that the statute creates a strict liability crime. See 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.8(a), at 342 (1986). "[S]ilence on this point by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal." Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). "On the contrary, we must construe the statute in light of the background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded." Id. (citation omitted); see also Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952) ("[M]ere omission ... of any mention of intent will not be construed as eliminating that intent from the crimes denounced.").

In light of the nature of the offense at issue and the severity of the prescribed punishments, we do not believe that § 2332a is a strict liability crime. See Staples, 511 U.S. at 606-07, 114 S.Ct. 1793 (interpretation of statutes silent as to mens rea as imposing strict liability is generally limited to "public welfare" or "regulatory" offenses); Morissette, 342 U.S. at 251-61, 72 S.Ct. 240 (reviewing history of the common law and the rise of regulatory offenses); LaFave & Scott, supra, at 342-44. Thus, we must decide the appropriate level of intent to read into the statute.

In United States v. Bailey, 444 U.S. 394, 406, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), the Supreme Court indicated that we should consider the mental state necessary for each separate element of a statute. We find two elements in §§ 2332a(a)(2) and (a)(3) as they existed at the time of the bombing: first, using, or attempting or conspiring to use, a weapon of mass destruction, and second, doing so against persons in the United States or against "any property that is owned, leased or used by the United States or by any department or agency of the United States ....."

We conclude that the intent standard of "knowingly" is appropriate for each of the elements of a § 2332a violation. See Bailey, 444 U.S. at 408, 100 S.Ct. 624 ("[E]xcept in narrow classes of offenses, proof that the defendant acted knowingly is sufficient to support a conviction."); see also Staples, 511 U.S. at 619, 114 S.Ct. 1793 (adopting "knowingly" standard in face of congressional silence as to intent); Posters 'N' Things, Ltd. v. United States, 511 U.S. 513, 523, 114 S.Ct. 1747, 128 L.Ed.2d 539 (1994) (same); Agnew, 931 F.2d at 1408 (same); United States v. Swindler, 476 F.2d 167, 169-70 (10th Cir.1973) (same); 1 Edward J. Devitt et al., Federal Jury Practice & Instructions § 17.02, at 606 (4th ed. 1992) ("Most federal criminal statutes ... require proof that a defendant act knowingly or wilfully or have knowledge with regard to one or more essential elements of the crime defined by that statute."). Thus, we conclude that § 2332a(a)(2) requires the government to prove that McVeigh (1) knowingly used, or attempted or conspired to use, a weapon of mass destruction, and (2) knowingly did so against persons in the United States. Section § 2332a(a)(3) requires the government to prove that McVeigh (1) knowingly used, or attempted or conspired to use, a weapon of mass destruction, and (2) knowingly did so against "any property that is owned, leased or used by the United States or by any department or agency of the United States."

The fact that the statute authorizes the death penalty "if death results" from the use of the weapon of mass destruction does not persuade us that the statute incorporates "intent to kill" as an element. Looking at the plain language and structure of the statute, we conclude that the phrase "if death results" is a sentencing factor rather than an element of the offense. Cf. United States v. Oliver, 60 F.3d 547, 552 (9th Cir.1995) (construing "if death results" as sentence enhancement under 18 U.S.C. § 2119), cert. granted sub nom. Jones v. United States, --- U.S. ----, 118 S.Ct. 1359, 140 L.Ed.2d 509 (1998), amended, --- U.S. ----, 118 S.Ct. 1405, 140 L.Ed.2d 644 (1998); United States v. Williams, 51 F.3d 1004, 1009 (11th Cir.1995) (same); United States v. Ryan, 9 F.3d 660, 669 (8th Cir.1993) (construing "if death results" as sentence enhancement under 18 U.S.C. § 844(i)), modified on other grounds, 41 F.3d 361 (8th Cir.1994) (en banc); see also Almendarez-Torres v. United States, --- U.S. ----, ----, 118 S.Ct. 1219, 1224, 140 L.Ed.2d 350 (1998) (construing 8 U.S.C. § 1326(b)(2) as sentence enhancement for a deported alien returning to the United States without permission). The natural reading of the text of § 2332a(a) is that subsections (a)(1), (a)(2), and (a)(3) define the elements of the crime, i.e., the use of a weapon of mass destruction against specified targets. The penalties follow separately--any term of years, life imprisonment, and in some cases, the death penalty. The proof needed to trigger the death penalty, however, is not necessary to prove a violation of the statute. Sentencing enhancements generally are not treated as elements and do not increase the government's burden of proof during the guilt phase of a trial. See Almendarez-Torres, --- U.S. at ---- - ----, 118 S.Ct. at 1230-32.

Further, even if the phrase "if death results" were to be construed as an element of the offense rather than a sentencing enhancement, it would not be an intent element but only an element of factual consequences. Nothing in § 2332a(a) links the "if death results" language of the statute to any scienter whatsoever. Cf. United States v. Woodlee, 136 F.3d 1399, 1405 (10th Cir.1998) ("[18 U.S.C. § ] 245(b) expressly provides the government need only show the defendants' illegal conduct resulted in bodily injury; not that the defendants intended bodily injury."), petition for cert. filed (U.S. May 22, 1998) (No. 97-9239).13

McVeigh also contends that § 2332a must require the government to prove intent to kill because it authorizes the death penalty, which cannot be imposed absent proof of intent to kill. We are well aware that the government may not secure a death sentence without proving a certain level of criminal intent. See Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (Eighth Amendment prohibits imposing death penalty on robber who did not himself kill or intend to kill or to employ lethal force); Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) ("[M]ajor participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement."). However, the Supreme Court recently reiterated that Enmund did not establish any new substantive elements of a capital crime, and that these necessary findings may be made at any stage of the proceedings, including during sentencing or on appeal. See Hopkins v. Reeves, 524 U.S. 88, ----, 118 S.Ct. 1895, 1902, 141 L.Ed.2d 76 (1998); see also Cabana v. Bullock, 474 U.S. 376, 392, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). Thus, "intent to kill" need not be incorporated into the jury instructions during the guilt phase of a capital case if it is not an element of the charged crime.14

We also reject McVeigh's contention that, even if "intent to kill" is generally not an element of the charged offenses, in this case the government was still bound to prove such intent because it was charged in the indictment. This argument disregards Supreme Court and Tenth Circuit authority. Surplusage in an indictment need not be proved, see United States v. Miller, 471 U.S. 130, 144, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985); United States v. Smith, 838 F.2d 436, 439 (10th Cir.1988); United States v. Harper, 579 F.2d 1235, 1239 (10th Cir.1978) ("When the language of the indictment goes beyond alleging the elements of the offense, it is mere surplusage, and such surplusage need not be proved."), and we have held that allegations of criminal intent that go beyond the elements of the crime are surplusage, see United States v. Kilburn, 596 F.2d 928, 934 (10th Cir.1978).15

The instructions given the jury regarding the intent elements of Counts I and II were more than adequate. For Count I, which charged conspiracy to violate § 2332a, the jury was instructed it had to find beyond a reasonable doubt "[t]hat the defendant, Timothy James McVeigh, knowingly and voluntarily became a member of the conspiracy, with the intent to advance or further its objectives." We have held that the intent elements of conspiracy are that the defendant "knew the essential objectives of the conspiracy" and "knowingly and voluntarily took part in the conspiracy." United States v. Ailsworth, 138 F.3d 843, 850 (10th Cir.1998), petition for cert. filed (U.S. July 15, 1998) (No. 98-5276). The district court's instructions adequately conveyed those elements and ensured that to convict McVeigh, the jury would have to find that McVeigh knowingly conspired to use a weapon of mass destruction against persons or property in violation of §§ 2332a(2) and (a)(3).

For Count II, the court charged the jury that to convict it must find that McVeigh used a weapon of mass destruction against persons and that he acted "knowingly, intentionally, willfully, and maliciously." This instruction also ensured the jury would have to find the proper criminal intent. Further, beyond instructing the jury on the proper standard of "knowingly," the instruction added an element not required by § 2332a, the element of malice. However, this addition certainly did not prejudice McVeigh.

ii. 18 U.S.C. § 844(f)

Count III charged the malicious destruction of federal property by means of an explosive, in violation of 18 U.S.C. §§ 844(f) and 2(a) & (b). The version of 18 U.S.C. § 844(f) in effect at the time of the bombing provided:

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned, possessed, or used by, or leased to, the United States, any department or agency thereof, or any institution or organization receiving Federal financial assistance shall be imprisoned for not more than 20 years, fined the greater of the fine under this title or the cost of repairing or replacing any property that is damaged or destroyed, or both; and if personal injury results to any person including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be imprisoned not more than 40 years, fined the greater of the fine under this title or the cost of repairing any property that is damaged or destroyed, or both; and if death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment.16

Thus, the plain language of the statute indicates that the required criminal intent is "maliciously." See McFadden v. United States, 814 F.2d 144, 145 (3d Cir.1987).

One acts maliciously if he or she acts "intentionally or with willful disregard of the likelihood that damage or injury will result." McFadden, 814 F.2d at 146; see also United States v. Gullett, 75 F.3d 941, 947-48 (4th Cir.1996) (same, construing 18 U.S.C. § 844(i)), cert. denied, 519 U.S. 847, 117 S.Ct. 134, 136 L.Ed.2d 83 (1996); United States v. Corona, 108 F.3d 565, 571 (5th Cir.1997) (same).