During the early morning hours of January 27, 1996, Tanji Jackson, Tamika Black, and Mishann Chinn were found murdered in the Patuxent National Wildlife Refuge in Prince George's County, Maryland. Dustin John Higgs was subsequently convicted by a federal jury of three counts of first-degree premeditated murder, see 18 U.S.C.A. § 1111(a) (West 2000), three counts of first-degree murder committed in the perpetration or attempted perpetration of a kidnapping, see id., and three counts of kidnapping resulting in death, see 18 U.S.C.A. § 1201(a)(2) (West 2000), all of which are punishable by life imprisonment or death. Higgs was also convicted of three counts of using a firearm "during and in relation to [a] crime of violence." 18 U.S.C.A. § 924(c) (West 2000). Ultimately, Higgs received nine death sentences under the Federal Death Penalty Act of 1994, see 18 U.S.C.A. § 3591-3598 (West 2000 & Supp.2003) (the "FDPA" or "Act"), one for each murder and kidnapping count, and a consecutive 45-year sentence for the firearm convictions. See 18 U.S.C.A. § 924(c)(1). On appeal, Higgs challenges his convictions and sentences on multiple grounds. Having considered all issues raised by Higgs on appeal, as well as the question of "whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor and whether the evidence supports the special finding of the existence of an aggravating factor required to be considered under section 3592," we find no reversible error. Accordingly, we affirm Higgs's convictions and the sentences of death imposed by the district court.

On Friday evening, January 26, 1996, Higgs, Willie Mark Haynes and Victor Gloria drove from Higgs's apartment at 13801 Briarwood Drive in Laurel, Maryland, to Washington D.C. to pick up Tanji Jackson, Tamika Black, and Mishann Chinn. Higgs knew Jackson and they had arranged dates for Haynes and Gloria with Black and Chinn. They were traveling in Higgs's blue Mazda MPV van. After stopping at a liquor store, the three couples returned to Higgs's apartment to drink alcohol and listen to music. While there, the men also smoked marijuana.1

At some point during the early morning hours of January 27, Higgs and Jackson began to argue. Jackson retrieved a knife from the kitchen and Haynes, who had been in the bedroom with Black, heard the commotion and came out to break up the fight. Haynes talked to Jackson and got the knife away from her. However, Jackson was still angry and the three women left the apartment. According to Gloria, as Jackson was walking out, "[s]he stopped at the door and said something like I am going to get you all f____ed up or robbed" or made "some kind of threat." J.A. 473. In response, Higgs commented to the other two men that Jackson "do know a lot of n_____s." J.A. 474. As Higgs was watching the women leave, he saw Jackson stop and appear to write down the license plate number of his van. This angered Higgs, who commented to Haynes and Gloria that Jackson was "writing down [his] sh —." J.A. 474. Gloria interpreted Higgs's comments as concern that Jackson intended to retaliate against Higgs.

At that point, "Higgs said f____ that, and grabbed his coat and said come on." J.A. 474. He also retrieved a silver .38 caliber firearm from the end table drawer and put it in his pocket. The three men got into Higgs's van, with Higgs driving, Haynes in the front passenger seat, and Gloria sitting behind Higgs. Higgs drove the van to where the three women were walking on the side of the road and told Haynes to get them in the vehicle. After Haynes spoke to them, the three women got into the back seat of the vehicle and Higgs started driving towards Washington, D.C. Neighbors in the area heard and saw the three girls laughing and talking around 3:30 that morning.

According to Gloria, while en route to Washington, D.C., Higgs and Haynes leaned towards each other and engaged in a quiet conversation that Gloria could not hear. The women were whispering in the back of the van and apparently believed they were being taken home. Higgs, however, drove past the Baltimore-Washington Parkway exit, which would have taken them directly into Washington, D.C., and instead drove the van into the Patuxent National Wildlife Refuge, a federal property within the jurisdiction of the United States Park Police. Eventually, Higgs pulled over at a secluded location. One of the girls asked if they were trying to "make [them] walk from [t]here," and Higgs responded, "something like that." J.A. 482. After the women got out of the van, Higgs pulled out the pistol and handed it to Haynes, who put it behind his back and also exited the van. Within moments, Gloria heard a gunshot and wiped the mist off the back window in time to see Haynes shoot one of the women in the chest. Gloria turned to ask Higgs what he was doing, but saw Higgs holding the steering wheel and watching the shootings from the rearview mirror. Gloria put his head down, heard more shots, and heard a woman screaming.

After firing a few more shots, Haynes got into the van and closed the door. According to Gloria, either Higgs or Haynes then commented that they had to "get rid of the gun," J.A. 485, and Higgs drove to the Anacostia River where, according to Gloria, either Higgs or Haynes got out and threw the gun into the water. Higgs then drove back to his apartment where the three men began to clean up. Among other things, they wiped down the patio doors and "everything else, the bathroom, the doorknobs, the stereo," and threw away any items the women might have touched, such as liquor bottles, CDs, and rented videotapes. J.A. 487. The men then left the apartment and dropped the trash by a dumpster. Higgs and Haynes dropped Gloria off at a fast food restaurant, where he was told by Higgs to "keep [his] mouth shut." J.A. 489.

At about 4:30 a.m., a motorist found the bodies of the three women strewn about the roadway and contacted the Park Police. Jackson's day planner was found at the scene with Higgs's nickname— "Bones" — and telephone number recorded in it. On another page was written "13801 `MAZDA' 769GRY" — Higgs's address number on Briarwood Drive and the tag number for his Mazda van. A .38 caliber wadcutter bullet was also found there. According to the medical examiner, Jackson and Black had each been shot once in the chest and once in the back. Chinn had been shot once in the back of the head.

Although Higgs was almost immediately a suspect, the investigation into the murders continued for nearly three years before an arrest was made. On March 21, 1996, Park Police officers first interviewed Higgs at his apartment. At that time, Higgs acknowledged that he knew Jackson and that he may have talked to her the night before she died, but he denied that she had ever been in his apartment. Higgs told the officers that he first heard about the murders while watching the ten o'clock news on Saturday, January 27, while attending a party at the home of Phyllis Smith, who was his girlfriend at the time. Higgs also told the officers that he had immediately commented to a party guest that he thought he knew "that Tanji girl." J.A. 672. According to the chief investigator, however, the names and photographs of the three victims were not released to the media until January 28.

After the interview of Higgs was concluded, the officers executed an arrest and search warrant arising from Higgs's suspected involvement in unrelated bank fraud violations. In addition to a variety of documents and cash bundles, the officers seized crack cocaine, a .380 semiautomatic firearm, and boxes of ammunition for .380, .45 and .38 caliber weapons. Higgs was arrested on federal drug charges and, on May 12, 1997, pled guilty to possession with intent to distribute cocaine base. He was ultimately sentenced to seventeen years imprisonment for the charge. Higgs has remained in the custody of either state or federal law enforcement officials since that arrest.

After Higgs was interviewed and arrested, the Park Police turned their attention to Phyllis Smith. Smith initially provided a false alibi for Higgs on the night of the murders. She claimed that Higgs had been with her and her family members the entire night of January 26, helping her clean her home in preparation for the party that was to be held the following night. She also instructed her family members to confirm the alibi. In April 1996, however, Smith testified before the grand jury that Higgs was only with her at 5 a.m. on January 27.

Ultimately, Smith recanted both accounts. She testified that Higgs called her when he was arrested in March 1996 and asked her to tell officials that he had been with her the entire night of January 26. She did as she was instructed, but believed at the time that she was being interviewed in connection with the drug charges that had been filed against Higgs. When Smith later learned that the questions pertained to the triple murder investigation, Higgs told her that he did not know the murdered women, but that Haynes had known them. When Smith was called before the grand jury in late 1998, she admitted her earlier lies about Higgs's whereabouts that night. Although she and several of her family members had been cleaning her home on the evening of January 26, Higgs was not with them. Nor was Higgs at her house in the early morning hours of January 27. At trial, Smith again testified that Higgs had not helped her prepare for the party that night and was not with her when she went to bed at 1:30 a.m. on January 27. Nor was he in her home when she awoke, as she routinely did, at 5 a.m. to care for her disabled son. Smith returned to bed shortly thereafter and awoke at 10:00 a.m., when she first found Higgs and Haynes present in her home. Thus, Higgs must have arrived at Smith's home sometime between 5 a.m. and 10 a.m. on the morning of January 27. Smith did confirm that Higgs and Haynes were at her house that night for the party and that the television was on during the party.

Officers also interviewed Enidsia Darby, a former girlfriend of Higgs and the mother of his son, Daquon. Darby testified that Higgs contacted her by telephone after his March 1996 arrest and told her that he had been arrested for drugs. Darby, however, had seen news reports of Higgs's arrest that contained photographs of the three murdered women and she asked Higgs about them. In response, Higgs asked Darby if she remembered that he had been with her at the hospital on the night of the murders, which was not true. When Darby visited Higgs in jail, Higgs admitted that he had been present when Haynes shot the women. He told Darby that Jackson had been invited over to his house to smoke and drink because she had been "snitching on one of them." J.A. 759. He told her that he did not know the other two girls; "[t]hey were just for his friends." J.A. 761.

In addition to her testimony regarding Higgs's drug activities, Darby offered testimony regarding a bank fraud scheme and credit card scheme that she and Higgs had conducted in the fall of 1995. Higgs deposited checks into accounts that had been opened by Darby and Andrea Waters, one of Darby's friends. The women, in turn, would withdraw the cash and give it to Higgs. Waters was paid a portion of the money withdrawn from her account, but when the checks deposited in her account bounced and Higgs refused to return the money, she threatened to go to the police. Higgs responded with a threat to kill her. Darby also testified that, while employed in the electronics department of a retail department store, she charged merchandise for Higgs to a credit card number Higgs had given her. Months later, when Darby was contacted by the police about the matter, Higgs threatened to kill her if she identified him from the surveillance photographs.

The investigation into Higgs's possible involvement in the murders also uncovered his participation in two prior shooting incidents involving a .38 caliber weapon. The incidents were significant because the same caliber weapon had been used to murder the three women.

The first incident occurred on November 20, 1995, approximately two months before the murders. Higgs got into an argument outside the Chaconia Nightclub in Washington, D.C., and shot out the windows of a vehicle in a drive-by shooting. After Higgs's arrest on the federal drug charges and while the murder investigation was still underway, the vehicle was searched and the police recovered a .38 caliber bullet. Wondwossen Kabtamu, who was with Higgs at the time of the Chaconia shooting, testified that he drove Higgs's Mazda MPV van while Higgs did the shooting. Kabtamu threw the gun out the window after the shooting, but they returned to get it at Higgs's insistence.

Higgs was ultimately charged with the Chaconia shooting in the D.C. Superior Court. In late 1998, while housed at a D.C. jail, Higgs had a number of discussions about the Chaconia charges with Domenick Williams, a fellow inmate and "jailhouse lawyer." Higgs never admitted involvement in the Chaconia shooting to Williams, but he did tell Williams "[t]hat he didn't want to plead guilty because they would try to use the gun in another case." J.A. 975. After Williams learned through a press report that Higgs was being indicted for the murders of the three women, Higgs commented to Williams, "you see why I can't plead guilty to that charge?" J.A. 979. Higgs also advised Williams that he had rebuffed the authorities' attempts to strike a deal with him to cooperate against his co-defendant Haynes. When Williams advised Higgs that the authorities would likely offer Haynes a deal to cooperate if Higgs refused, Higgs told Williams "that his youngan would hold up," J.A. 984, and "that the government wouldn't offer a deal to the trigger man," J.A. 985.

Williams also testified that Higgs asked him what the chances would be "if the witness after the fact wasn't there," J.A. 982, referring to Gloria. Williams told him that "his chances would be good." J.A. 983. Higgs later "explained to [Williams] that he wasn't worrying about the [murder] case because Mel and T would be out there." J.A. 987. Melvin Grayson and "T" were former inmates at the jail where Williams and Higgs were incarcerated. Higgs told Williams "[t]hat Mel would be out there to handle anything that he needed and that he could rely on him." J.A. 992.

Williams later notified the authorities of his conversations with Higgs and produced letters that Higgs had written to him in which Higgs reported that the Chaconia case had been dismissed, that Higgs had not heard from "T", but that "Mel has been in my corner." J.A. 1011. Through visitation records, authorities learned that Melvin Grayson had visited Higgs in the D.C. jail in February 1999 and again in March 1999. The Chaconia charges against Higgs were dismissed in D.C. Superior Court in May 1999.

The second shooting incident occurred on December 10, 1995, approximately a month after the Chaconia nightclub shooting. Haynes went to the home of Rodney Simms on Cherry Lane in Laurel, Maryland, and argued with Simms about a woman. During the argument, Haynes took out a 9mm handgun and began shooting. Higgs came out from a nearby shed and also began firing shots. Haynes and Higgs were charged in Maryland state court for the shooting. Police recovered 9mm and .38 caliber bullets and bullet casings from the Cherry Lane crime scene. Forensic evidence revealed that the .38 caliber bullets fired from the weapons at the Cherry Lane and Chaconia sites had five "lands and grooves," with a right twist.2 Although forensics could not definitively conclude that the bullets had been fired from the same weapon, the .38 caliber bullets recovered from the Patuxent murder scene and the murder victims were also .38 caliber bullets shot from a gun with five lands and grooves with a right twist.

In April 1997, Higgs pled guilty to the Cherry Lane shooting and was sentenced to 18 months imprisonment. During the plea hearing, the prosecutor stated that Haynes had fired the 9mm handgun and that Higgs had fired the .38 caliber handgun. Higgs offered no contest to the facts underlying the Cherry Lane shooting, with the single exception of gratuitously asserting that he "didn't have a .38. It was the other way around." J.A. 1104.

On December 21, 1998, Higgs and Haynes were indicted for three counts each of first-degree premeditated murder, see 18 U.S.C.A. § 1111(a), first-degree murder committed in the perpetration or attempted perpetration of a kidnapping, see id, kidnapping resulting in death, see 18 U.S.C.A. § 1201(a), and using a firearm in the commission of a crime of violence, see 18 U.S.C. § 924(c). On October 22, 1999, the government filed the statutorily-required notice of its intent to seek a death sentence for the murder and kidnapping charges. See 18 U.S.C.A. § 3593(a). On December 20, 1999, the grand jury returned a second superseding indictment, and the government filed an amended death notice on February 8, 2000.3

The cases were severed for trial. Haynes was tried first and convicted of first-degree murder, kidnapping, and use of a firearm during a crime of violence. During the penalty phase of Haynes's trial for the murder and kidnapping counts, however, the jury was unable to reach a unanimous verdict on the death sentence. Accordingly, on August 24, 2000, the district court sentenced Haynes to concurrent life terms for the first-degree murder and kidnapping counts and to a forty-five year consecutive sentence for the firearm offenses. His convictions and sentences were affirmed on appeal. See United States v. Haynes, 26 Fed. Appx. 123, 2001 WL 1459702 (4th Cir.2001), cert. denied, 535 U.S. 979, 122 S.Ct. 1455, 152 L.Ed.2d 396 (2002).

Jury selection in Higgs's trial began on September 5, 2000, and the jury returned guilty verdicts on all charges on October 11, 2000. The case then proceeded to the penalty phase. On October 26, 2000, after hearing evidence on aggravating and mitigating factors, the jury returned a sentence of death for each of the murder and kidnapping counts.

In order to impose a sentence of death under the FDPA, a jury is required to find at least one "intent" factor enumerated by Congress, see 18 U.S.C.A. § 3591(a)(2), and at least one statutory "aggravating" factor, see 18 U.S.C.A. § 3592(c). Once the jury finds the requisite intent and statutory aggravating factors, the crime is death-eligible. The jury must then determine the existence of any non-statutory aggravating factors submitted to it for consideration, provided the government has given the appropriate notice of its intent to submit such additional factors, see 18 U.S.C.A. § 3592(c), as well as any mitigating factors, see 18 U.S.C.A. § 3592(a), and "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," 18 U.S.C.A. § 3593(e).

As to all victims and offenses, the jury in Higgs's case determined that the government had proven two intent factors beyond a reasonable doubt: (1) that Higgs had "intentionally participated in ... act[s], contemplating that the [lives] of [the victims] would be taken or intending that lethal force would be used in connection with [the victims]"; and (2) that Higgs had "intentionally and specifically engaged in... act[s] of violence, knowing that the act[s] created a grave risk of death to the [victims]." See 18 U.S.C.A. § 3591(a)(2)(C) & (D).

The jury also found that the government had proven beyond a reasonable doubt four statutory aggravating factors: (1) that the deaths occurred during the commission of another crime (kidnapping), for the first-degree murder counts only, see 18 U.S.C.A. § 3592(c)(1); (2) that Higgs had a previous conviction of a violent felony involving a firearm, based on Higgs's guilty plea to assault and reckless endangerment for his participation in the Cherry Lane shooting, see 18 U.S.C.A. § 2592(c)(2); (3) that Higgs had a previous conviction for a serious federal drug offense, based on Higgs's March 1996 arrest and subsequent conviction for possession with intent to distribute cocaine base, see 18 U.S.C.A. § 3592(c)(12); and (4) that the crime for which he was on trial involved multiple killings in a single criminal episode, see 18 U.S.C.A. § 3592(c)(16). The jury found that the government had also proven two nonstatutory aggravating factors beyond a reasonable doubt: (1) that Higgs had caused harm and loss to each victim and their families, based on the effect of the offense on the victims, their personal characteristics as individual human beings, and the impact of the death upon the victims and their families ("victim impact"); and (2) that Higgs obstructed the investigation into the kidnappings and murders by tampering or attempting to tamper with evidence and witnesses ("obstruction of justice").

Members of the jury also found three mitigating factors by a preponderance of the evidence: (1) that Higgs was not the sole proximate cause of the victims' deaths (12 jurors); (2) that Higgs was impaired by alcohol and marijuana at the time of the murders (2 jurors); and (3) that a sentence of death would have an adverse impact on Higgs's son (4 jurors). See 18 U.S.C.A. § 3592(a). However, the jury unanimously rejected three additional mitigating factors: (1) that Haynes was an equally culpable defendant who had not been sentenced to death for the murders; (2) that Higgs's family history, including the abandonment by his father and the death of his mother at a young age, influenced the direction his life had taken; and (3) that other factors in Higgs's background, record, or character or other circumstances of the offense mitigated against imposition of the death sentence.

Ultimately, the jury recommended that Higgs be sentenced to death for each death-eligible conviction and, on January 3, 2001, the district court imposed nine death sentences. The district court also imposed sentences of five years, twenty years, and twenty years for the three § 924(c) convictions, respectively, directing that the sentences be served consecutively. Additionally, the court imposed a three-year term of supervised release and directed Higgs to pay restitution of $13,687. On appeal, Higgs presents twenty separate assignments of error to his convictions and sentences, which we address in turn.

We first consider Higgs's claim that his capital convictions and death sentences must be vacated because the indictment failed to charge Higgs specifically with the intent factors required under 18 U.S.C.A. § 3591(a)(2) and the aggravating factors required under 18 U.S.C.A. § 3592(c) to impose a sentence of death under the FDPA. We review the legal sufficiency of an indictment de novo. See United States v. Bolden, 325 F.3d 471, 486 (4th Cir.2003).

The Indictment Clause of the Fifth Amendment provides, in pertinent part, that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Const. amend. V. Its purpose is to ensure that a defendant's jeopardy is limited "to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge." Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). In conjunction with the notice requirement of the Sixth Amendment,4 the Indictment Clause provides two additional protections: the right of a defendant to be notified of the charges against him through a recitation of the elements, and the right to a description of the charges that is sufficiently detailed to allow the defendant to argue that future proceedings are precluded by a previous acquittal or conviction. See Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); see also Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) ("[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense"); United States v. Carrington, 301 F.3d 204, 209-10 (4th Cir.2002) (same). In this case, we are presented with the question of whether Higgs's federal indictment sufficiently alleged the nine murder and kidnapping counts as death-eligible, capital offenses — an inquiry that places us squarely within the arena of Apprendi and its progeny. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

In Apprendi, the defendant was convicted of second-degree possession of a firearm, punishable by a term of imprisonment of between five and ten years. However, he was sentenced to twelve years imprisonment under New Jersey's "hate crime" law, which authorized an enhanced sentence of between ten and twenty years if the sentencing judge found, by a preponderance of the evidence, that the crime was motivated by racial animus. The Supreme Court reversed and remanded, concluding that the Sixth Amendment mandated that, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348.

A similar mandate flows from the Fifth Amendment's Indictment Clause: "In federal prosecutions, such facts must also be charged in the indictment." United States v. Cotton, 535 U.S. 625, 627, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); see also United States v. Promise, 255 F.3d 150, 156-57 (4th Cir.2001) (en banc) (holding that, when applying Apprendi to a federal prosecution, a fact that increases the maximum penalty "must be treated as an element of an aggravated ... offense, i.e., charged in the indictment and proved to the jury beyond a reasonable doubt" (footnote omitted)); id. at 157 n. 6 (rejecting argument that "a fact that increases the maximum penalty must be treated as an element for purposes of some rights guaranteed by the Fifth Amendment (e.g. the right to a determination of guilt beyond a reasonable doubt) but not others (e.g., the right to indictment by a grand jury)").

These cases stand for the settled proposition that, with the exception of the fact of a prior conviction, a defendant may not be exposed "to a penalty exceeding the [statutory] maximum he would receive if punished according to the facts reflected in the jury's verdict alone." Apprendi, 530 U.S. at 483, 120 S.Ct. 2348. In determining whether a particular fact is to be treated as an element of the offense, as opposed to a sentencing factor, "the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Id. at 494, 120 S.Ct. 2348.

In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Supreme Court had occasion to consider the effect of Apprendi's holding upon Arizona's capital sentencing scheme, which allowed the trial judge alone to determine the presence of aggravating factors required for imposition of the sentence of death. Overruling its prior decision in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990),5 the Court struck down the scheme, holding that the Sixth Amendment mandates that "[c]apital defendants, no less than non-capital defendants,... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." Ring, 536 U.S. at 589, 122 S.Ct. 2428. "If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact ... must be found by a jury beyond a reasonable doubt. A defendant may not be exposed to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone." Id. at 602, 122 S.Ct. 2428 (internal citation, quotation marks and alterations omitted). "Because Arizona's enumerated aggravating factors operate as the functional equivalent of an element of a greater offense," the Court held that "the Sixth Amendment requires that they be found by a jury." Id. at 609, 122 S.Ct. 2428 (internal quotation marks omitted).

The Arizona sentencing scheme at issue in Ring did not directly implicate the Fifth Amendment Indictment Clause. See Ring, 536 U.S. at 597 n. 4, 122 S.Ct. 2428 (noting that Ring "does not contend that his indictment was constitutionally defective" and that "the Fourteenth Amendment has not been construed to include the Fifth Amendment right to presentment or indictment of a Grand Jury" (internal quotation marks and ellipsis omitted)). Thus, the Supreme Court has not yet addressed the precise issue of whether, and to what extent, the Indictment Clause requires that the intent and aggravating factors be charged in the indictment. Higgs asserts that the principles of Apprendi and Ring dictate that any factor required to be submitted to the jury must be included in the indictment. We agree.

Higgs's indictment charged him with three counts each of premeditated murder, murder committed in the perpetration of a kidnapping, and kidnapping resulting in death. Like the Arizona criminal statutes at issue in Ring, the federal statutes setting forth these offenses provide that the offender shall be punished by either death or life imprisonment.6

A defendant does not become eligible for the death penalty, however, unless the jury finds at least one statutory intent factor, see 18 U.S.C.A. § 3591(a)(2), and at least one statutory aggravating factor, see 18 U.S.C.A. § 3592(c). See Jones v. United States, 527 U.S. 373, 376-377, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); see also 18 U.S.C.A. § 3593. Because a defendant may be sentenced only to life imprisonment unless the jury finds the existence of at least one intent factor and one statutory aggravating factor, we have little trouble concluding that such factors increase the penalty for the crimes of first-degree murder and kidnapping resulting in death beyond the otherwise maximum sentence of life imprisonment. Accordingly, with the exception of the fact of prior convictions, those intent and aggravating factors which the government intends to rely upon to render a defendant death-eligible under the FDPA are the functional equivalent of elements of the capital offenses and must be charged in the indictment, submitted to the petit jury, and proved beyond a reasonable doubt.

We reject, however, Higgs's claim that the Indictment Clause requires that nonstatutory aggravators relied upon by the government at trial be included in the indictment. The finding of a nonstatutory aggravator alone will not support imposition of the death penalty. Rather, the purpose of nonstatutory aggravators is to aid the factfinder in selecting the appropriate sentence from the available options, i.e., death or life imprisonment. Thus, "the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence. What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime." Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (internal quotation marks omitted); see also Jones, 527 U.S. at 376-379, 119 S.Ct. 2090 (discussing the FDPA decisionmaking process and the distinction between the "eligibility" decision and the "selection" decision); Zant v. Stephens, 462 U.S. 862, 878-79, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (discussing difference between "eligibility" and "selection" factors); cf. United States v. Tipton, 90 F.3d 861, 893-94 (4th Cir.1996) (discussing the decisionmaking process under the analogous death sentencing proceedings of 21 U.S.C. § 848). Because nonstatutory aggravating factors do not increase the available punishment to which a defendant might be subjected, they are not required to be alleged in the indictment.

We now turn to the issue of whether Higgs's indictment for the capital crimes was in fact constitutionally defective under the Indictment Clause because it failed to allege the statutory intent and aggravating factors relied upon by the government.

We begin with the intent factors of 18 U.S.C.A. § 3591(a)(2). In returning the verdict of death for each of the murder and kidnapping charges, the jury found that the government had proven two such factors beyond a reasonable doubt — intentional acts to take a life and intentional acts of violence creating a grave risk of death. See 18 U.S.C.A. § 3591(a)(2). In the indictment, Higgs is charged with killing each of the three women, "by shooting [them] with a firearm, willfully, deliberately, maliciously, and with premeditation," and "in the perpetration of ... kidnapping." J.A. 135-36, 140-41, 145-46. Hence, the indictment sufficiently alleged that Higgs engaged in intentional acts to take the lives of the three women and intentional acts of violence that created a grave risk of death to the three women.

The question of whether the indictment sufficiently alleged the statutory aggravating factor required under 18 U.S.C.A. § 3592(c) to impose a death sentence is more difficult to answer.

We reject at the outset Higgs's contention that the indictment failed to sufficiently charge each of the capital murder and kidnapping counts because it failed to allege all of the statutory aggravating factors which were ultimately found by the petit jury. The FDPA sets forth sixteen potentially aggravating factors for a homicide conviction. See 18 U.S.C.A. § 3592(c). However, only one such aggravating factor need be found for the jury to recommend a sentence of death. See 18 U.S.C.A. § 3593(d) & (e). Because only one statutory aggravating factor is required under the Act to render a defendant death-eligible, we hold that the indictment need only allege one such aggravating factor. See United States v. Jackson, 327 F.3d 273, 287 (4th Cir.2003) (Niemeyer, J., concurring) ("[W]hen the death penalty is dependent on a finding of an aggravated offense, then the core statutory elements of that offense, as well as at least one aggravating factor, must be charged in the indictment and found by the jury."). There is no requirement that the indictment allege all of the factors that might be weighed by the jury when deciding whether to impose a death sentence. So long as one statutory aggravating factor is alleged in the indictment and the petit jury finds that statutory aggravating factor to exist, the indictment is not defective as to the capital offense charged. See id. The elements of the offense of conviction have been charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. Any additional statutory or nonstatutory aggravating factors may be fairly viewed as sentencing considerations.7

With regard to the six counts of murder and the three counts of kidnapping resulting in death with which Higgs was charged, the petit jury found the existence of three statutory aggravating factors: (1) multiple killings in a single criminal episode under 18 U.S.C.A. § 3592(c)(16); (2) previous conviction of a violent felony involving a firearm under § 3592(c)(2), based on Higgs's guilty plea to assault and reckless endangerment arising from the Cherry Lane shooting; and (3) previous conviction for a serious federal drug offense under § 3592(c)(12), based on Higgs's federal conviction for possession with intent to distribute cocaine base. With regard to the six first-degree murder counts, the jury also found that the government had proven, as an additional statutory aggravating factor, that the deaths occurred during the commission of another crime, specifically, a kidnapping. See 18 U.S.C.A. § 3592(c)(1).

The government argues that the indictment is not defective because it alleges facts which, if found by the jury, support two of these § 3592(c) aggravating factors — multiple killings in a single criminal episode and death during the commission of a kidnapping. In the alternative, the government argues that the indictment is not defective because the Fifth Amendment does not require that the prior conviction aggravators be alleged in the indictment.

For the reasons that follow, we agree that the indictment was not constitutionally deficient. However, the multiple killings aggravator, while adequately alleged in the indictment, cannot serve as the requisite statutory aggravator for any of the charges because it was not a statutory aggravator at the time the murders were committed. Rather, the indictment is not defective because the "other crime" aggravator was adequately alleged in the indictment to support a death sentence for the six first-degree murder charges and because the prior conviction aggravators, which support a death sentence for all charges, were not required to be alleged in the indictment at all.

a. The "Multiple Killings" Aggravator

We begin by rejecting the government's contention that the indictment is not defective as to either the § 1111(a) murder or § 1201(a) kidnapping charges because it alleges facts supporting the statutory aggravator of multiple killings in a single criminal episode. See 18 U.S.C.A. § 3592(c)(16). Although the indictment sufficiently alleged the aggravating factor, "multiple killings" was not added to the FDPA as a statutory aggravating factor until April 1996, three months after the murders were committed.

Article 1, § 9 of the United States Constitution provides that "[n]o Bill of Attainder or ex post facto Law shall be passed." Pursuant to the Clause, "`any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.'" Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (quoting Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). In short, the Ex Post Facto Clause prohibits "laws that retroactively alter the definition of crimes or increase the punishment for criminal acts." California Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (internal quotation marks omitted). A new law may not alter the elements of the offense or the quantum of punishment, nor may it deprive the defendant of a defense to which he would otherwise be entitled. See id.; Carmell v. Texas, 529 U.S. 513, 521-525, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000).

Although the prohibition against the use of ex post facto laws "does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed," Dobbert, 432 U.S. at 293, 97 S.Ct. 2290 (internal quotation marks omitted), it does "assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). The Clause operates to "forbid[ ] the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Id. at 30, 101 S.Ct. 960 (emphasis added).

In view of the Supreme Court's jurisprudence in Apprendi and Ring, we agree that the government cannot solely rely upon "multiple killings" as a statutory aggravating factor for a crime committed before its adoption without violating the Ex Post Facto Clause. With the exception of the prior conviction aggravators, statutory aggravating factors which render an offense of conviction death-eligible clearly "increase the punishment for criminal acts." Morales, 514 U.S. at 504, 115 S.Ct. 1597. Accordingly, we hold that the "multiple killings" aggravator cannot act as the sole statutory aggravator which rendered these murders death-eligible.

b. The "Other Crime" Aggravator

The indictment is not defective as to the first-degree murder charges because it sufficiently alleged the "death during commission of another crime" aggravator. The indictment specifically alleges that Higgs killed the three women "in the perpetration of, and attempted perpetration of a felony, to wit, kidnapping," J.A. 136, 141, 146, and charges further that Higgs "did knowingly, willfully and unlawfully seize, confine, inveigle, decoy, kidnap, abduct, carry away and hold [the women] for a reason which was of benefit to [him]." J.A. 138, 143, 148. Because the indictment charges facts supporting at least one aggravating factor, it is not defective as to the six capital murder counts charged under § 1111(a). This aggravator cannot, however, suffice to render the indictment sufficient for purposes of the three capital counts for kidnapping resulting in death charged under § 1201(a). Even if we assume that the statutory aggravator could have been submitted in support of the kidnapping counts, it was only submitted to the jury in connection with the § 1111(a) first-degree murder counts.

c. The Prior Conviction Aggravators

This leaves us with the government's argument that the indictment is not defective as to either the first-degree murder counts or the kidnapping-resulting-in-death counts because both categories of crimes carry the sentence of death as the statutory maximum and because two of the statutory aggravators found by the jury — Higgs's prior conviction for a violent felony involving a firearm and Higgs's prior conviction for a serious federal drug offense — fall within the Apprendi and Almendarez-Torres exception for prior convictions. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348; Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). In a nutshell, the government contends that the indictment is not defective because these "prior conviction" aggravators, both of which were found by the jury and either of which rendered the offenses death eligible, are not required to be alleged in the indictment to authorize imposition of the maximum penalty of death. We agree.

In Almendarez-Torres, the Supreme Court was squarely presented with the question of whether a federal indictment must allege the fact of a prior conviction to expose a defendant to an enhanced sentence. Under 8 U.S.C.A. § 1326(a), a deported alien who returned to the United States without special permission was subject to imprisonment for up to two years. Under subsection (b) of the same statute, however, such a deported alien could be imprisoned for up to twenty years "if the initial deportation was subsequent to a conviction for commission of an aggravated felony." Almendarez-Torres, 523 U.S. at 226, 118 S.Ct. 1219 (internal quotation marks omitted). As framed by the Court, the issue was

whether th[e] latter provision defines a separate crime or simply authorizes an enhanced penalty. If the former, i.e., if it constitutes a separate crime, then the Government must write an indictment that mentions the additional element, namely, a prior aggravated felony conviction. If the latter, i.e., if the provision simply authorizes an enhanced sentence when an offender also has an earlier conviction, then the indictment need not mention that fact, for the fact of an earlier conviction is not an element of the present crime.

Id. at 226, 118 S.Ct. 1219. The court held that subsection (b) was "a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime. Consequently, neither the statute nor the Constitution required the Government to charge the factor that it mentions, an earlier conviction, in the indictment." Id. at 226-27, 118 S.Ct. 1219.

The distinction between prior convictions and other facts that might expand a penalty range, first made in Almendarez-Torres, was addressed by the Court again in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In the wake of its recognition of the constitutional concerns raised by the "diminishment of the jury's significance by removing control over facts determining a statutory sentencing range," the Court reiterated that Almendarez-Torres "stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment." Jones, 526 U.S. at 248, 119 S.Ct. 1215 (emphasis added). The Court explained:

[T]he precise holding [in Almendarez-Torres] that recidivism increasing the maximum penalty need not be so charged ... rested in substantial part on the tradition of regarding recidivism as a sentencing factor, not as an element to be set out in the indictment. The Court's repeated emphasis on the distinctive significance of recidivism leaves no question that the Court regarded that fact as potentially distinguishable for constitutional purposes from other facts that might extend the range of possible sentencing. See [523 U.S.] at 230, 118 S.Ct. 1219 ("At the outset, we note that the relevant statutory subject matter is recidivism"); ibid. ("With recidivism as the subject matter in mind, we turn to the statute's language"); id. at 243, 118 S.Ct. 1219 ("First, the sentencing factor at issue here — recidivism — is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence"); id. at 245, 118 S.Ct. 1219 (distinguishing McMillan [v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)] "in light of the particular sentencing factor at issue in this case — recidivism"). One basis for that possible constitutional distinctiveness is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense,... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.

Id. at 248-249, 118 S.Ct. 1219. And, in Apprendi, the Court again distinguished the recidivism at issue in Almendarez-Torres from the "hate crime" enhancer before it:

Whereas recidivism does not relate to the commission of the offense itself, New Jersey's biased purpose inquiry goes precisely to what happened in the commission of the offense. Moreover, there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.

530 U.S. at 496, 120 S.Ct. 2348 (citation and internal quotation marks omitted); see also id. at 488, 120 S.Ct. 2348 (noting that "Almendarez-Torres turned heavily upon the fact that the additional sentence to which the defendant was subject was the prior commission of a serious crime" and explaining that "[b]oth the certainty that procedural safeguards attached to any `fact' of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that fact in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a fact increasing punishment beyond the maximum of the statutory range." (internal quotation marks omitted)).

Higgs acknowledges the Supreme Court's recidivism exception to the Apprendi mandate, but asserts that the Court's holding in Ring has placed on shaky ground the Almendarez-Torres proposition that prior convictions that increase the maximum penalty need not be alleged in the indictment, much like the defendant in Ring alleged that Walton's holding was irreconcilable with Apprendi's reasoning. That may or may not be so, but we are not at liberty to conclude that Almendarez-Torres is irreconcilable with Ring and grant him relief. Nor would we do so in view of the fact that the Ring Court specifically reserved the question of whether a judge may find the fact of prior convictions to be an aggravating circumstance in the death penalty context:

Ring's claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him. No aggravating circumstance related to past convictions in his case; Ring therefore does not challenge Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that the fact of prior conviction may be found by the judge even if it increases the statutory maximum sentence.

Ring, 536 U.S. at 597 n. 4, 122 S.Ct. 2428. Until the Supreme Court overrules Almendarez-Torres, we are bound to follow its holding. The indictment against Higgs alleged crimes for first-degree murder and kidnapping resulting in death, all of which authorized a sentence of life imprisonment or death. By virtue of the FDPA, life imprisonment is the maximum sentence that may be imposed unless the facts support a finding of at least one enumerated statutory aggravating factor. However, while statutory aggravators must be alleged in the indictment, submitted to the jury, and proven beyond a reasonable doubt, current Supreme Court jurisprudence excepts from this mandate the fact of a prior conviction. The Fifth Amendment Indictment Clause does not require an indictment to allege prior convictions that expose a defendant to an enhanced penalty.

Even assuming that the indictment was defective because it failed to allege the requisite statutory aggravating factor or factors, Higgs would not be entitled to have his convictions or sentences overturned.

It has long been "recognized that most constitutional errors can be harmless." See Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (internal quotation marks omitted); Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (noting the settled "principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt"); Fed.R.Crim.P. 52(a) (providing that "[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded"). To determine whether a constitutional error is harmless, we ask "whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Neder, 527 U.S. at 15, 119 S.Ct. 1827 (internal quotation marks omitted). Higgs contends that such a "harmless error" inquiry is inappropriate because the indictment's failure to charge the aggravating factors ultimately relied upon by the jury to impose a sentence of death is a structural error that mandates summary reversal of his capital convictions. We disagree.

Unlike the vast majority of trial errors which are reviewed for harmlessness, structural errors are conclusively presumed to affect the substantial rights of the defendant because they "deprive defendants of `basic protections' without which `a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair.'" Neder, 527 U.S. at 8-9, 119 S.Ct. 1827 (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). The Supreme Court has repeatedly stated that most constitutional errors are not structural and may, instead, be reviewed for harmlessness. See, e.g., id. at 8, 119 S.Ct. 1827. "If the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other constitutional errors that may have occurred are subject to harmless-error analysis." Id. (alterations and internal quotation marks omitted) (emphasis added). The "very limited class of cases" in which the Court has found structural error are those in which there was "a defect affecting the framework within which the trial proceed[ed], rather than simply an error in the trial process itself." Id. (internal quotation marks omitted). Such defects include such things as the failure to honor the core principle of proof beyond a reasonable doubt, the complete deprivation of counsel, the denial of the right to self-representation at trial, a biased trial judge, and the failure to preserve open and public trials. See Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927).

As correctly pointed out by Higgs, the Supreme Court has thus far found two grand jury errors to be structural — racial discrimination in the selection of grand jurors, see Vasquez v. Hillery, 474 U.S. 254, 260-64, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986), and sex discrimination in the selection of grand jurors, see Ballard v. United States, 329 U.S. 187, 195-96, 67 S.Ct. 261, 91 L.Ed. 181 (1946). However, only a month after Vasquez was decided, the Supreme Court found that a procedural error in a grand jury proceeding — allowing two witnesses to be in the grand jury room at the same time — was subject to harmless error review. See United States v. Mechanik, 475 U.S. 66, 70-71, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986). The Court found the error harmless in view of the subsequent jury verdict. Although the error

had the theoretical potential to affect the grand jury's determination whether to indict [the defendants] ... the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.

Id. at 70, 106 S.Ct. 938. The Court rejected the argument that an indictment error could not be held harmless on the basis of evidence presented at trial, reasoning that "even if this argument were accepted, there is no simple way after the verdict to restore the defendant to the position in which he would have been had the indictment been dismissed before trial." Id. at 71, 106 S.Ct. 938. In light of this fact, the Court saw "no reason not to apply" the general rule "that errors not affecting substantial rights shall be disregarded." Id.

The Mechanik Court also distinguished Vasquez, noting that the rationale of the Vasquez decision had "little force outside the context of racial discrimination in the composition of the grand jury," where automatic reversal was called for by the perniciousness of the problem and the impracticability of other remedies. Id. at 70 n. 1, 106 S.Ct. 938. "[T]he societal interest in deterring" the error before it, the Court held, "d[id] not rise to the level of [society's] interest in deterring racial discrimination." Id.

Most recently, in United States v. Cotton, the Supreme Court was presented with a conceded indictment error; i.e., the indictment did not allege the drug quantity that increased the statutory maximum sentence as required by Apprendi and Jones. Although the court declined to explicitly resolve the question of whether an indictment error was structural or subject to harmless error review, the Court did apply the plain error test and, having assumed that the defendant could establish that the error affected his substantial rights, held that "the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings." 535 U.S. at 632-33, 122 S.Ct. 1781.

The statements of the Supreme Court in Mechanik and Cotton indicate that it is far from settled under Supreme Court precedent that indictment errors are structural. Indeed, we think it more likely that this is not the case, given the Court's reluctance to identify new structural errors. Cf. Mitchell v. Esparza, ___ U.S. ___, 124 S.Ct. 7, 11-12, 157 L.Ed.2d 263, (2003) (per curiam) (holding that state court's determination that failure to charge aggravating factor for capital murder in indictment and to submit it to the jury was subject to harmless error review was not "contrary to," or "an unreasonable application of" its precedents governing harmless error review); id. at 11 ("We cannot say that because the violation occurred in the context of a capital sentencing proceeding that our precedent [on harmless error review] requires [an] opposite result.").

In the end, we are persuaded by the reasoning of our sister circuits, which have held that indictment error, and in particular the failure of an indictment to allege an element of a charged offense, may be reviewed for harmlessness:

[T]he Court in Neder held that the failure to instruct the jury on every element of an offense "does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Neder, 527 U.S. at 9, 119 S.Ct. 1827 (emphasis in original). To us, a defendant's right to have a petit jury find each element of the charged offense beyond a reasonable doubt is no less important than a defendant's right to have each element of the same offense presented to the grand jury. If denial of the former right is subject to harmless error analysis, we believe denial of the latter right must be as well.

United States v. Prentiss, 256 F.3d 971, 984 (10th Cir.2001) (en banc) (per curiam); see also United States v. Mojica-Baez, 229 F.3d 292, 311 (1st Cir.2000) (holding that the distinction between the trial judge's failure in Neder "to submit an element of the offense to the petit jury at trial" and "the failure to present an element to the grand jury to secure an indictment" on the offense is not "significant where the indictment provided the defendant with fair notice of the charges against him").

In this case, Higgs was charged with nine first-degree murder and felony murder charges, all of which carried a penalty of life imprisonment or death. Even if we assume that all of the aggravators relied upon by the jury to impose the sentence of death (including prior convictions) are to be treated as elements of the offenses that should have been alleged in the indictment, the indictment would only be defective because it failed to allege those essential elements of the offenses, not because it charged an offense different from the one for which he was ultimately convicted and sentenced. Such error is harmless because "it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Neder, 527 U.S. at 15, 119 S.Ct. 1827 (internal quotation marks omitted).

First, the primary function of an indictment is to notify the defendant of the charges against him and provide a sufficient basis upon which the defendant can plead the defense of former jeopardy. See Russell, 369 U.S. at 763-64, 82 S.Ct. 1038; Carrington, 301 F.3d at 209-10; see also Mojica-Baez, 229 F.3d at 310 (noting that the most serious harm that can result from a defective indictment "may be when a defendant is without fair notice of the charges against him"). These purposes were served by the indictment's reference to statutes for which death is the maximum possible penalty and the government's notice of its intent to seek the death penalty, which notified Higgs of all of the aggravating factors the government would seek to prove at trial to obtain that maximum sentence. Thus, while the indictment failed to specify every aggravating circumstance that the prosecutor intended to pursue in support of the statutorily-authorized penalty of death, Higgs was provided with fair notice of the charges against him, the prosecutor's intent to pursue the sentence of death, and each and every statutory and nonstatutory aggravating circumstance that the prosecutor intended to prove at trial.

Second, the petit jury's finding of all the aggravating factors beyond a reasonable doubt demonstrates that Higgs was not prejudiced by the lack of an independent judgment of the grand jury. See Mechanik, 475 U.S. at 70, 106 S.Ct. 938 (holding grand jury error harmless in light of subsequent finding of guilt beyond a reasonable doubt by petit jury); cf. United States v. Patterson, 241 F.3d 912, 914 (7th Cir.) (per curiam) ("Once the petit jury finds beyond a reasonable doubt ... that a particular [fact] was involved, we can be confident in retrospect that the grand jury (which acts under a lower burden of persuasion) would have reached the same conclusion."), cert. denied, 534 U.S. 853, 122 S.Ct. 124, 151 L.Ed.2d 79 (2001).

Finally, the record evidence of Higgs's previous convictions for a violent felony involving a firearm and for a serious federal drug offense, either of which would have been sufficient to meet the "aggravating factor" requirement, was not contested. Cf. Neder, 527 U.S. at 16, 119 S.Ct. 1827 (holding that harmlessness test was met when the record evidence supporting the element was "so overwhelming" that the defendant had not even contested it); id. at 19, 119 S.Ct. 1827 ("[W]here a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.").

In sum, we hold that any alleged indictment error was harmless beyond a reasonable doubt. The indictment's failure to specify every aggravating factor "did not necessarily render the indictment unfair or make it an unreliable vehicle with which to commence the proceedings in this case." Mojica-Baez, 229 F.3d at 312. Nor can we say the indictment error contributed to the verdict ultimately obtained from the petit jury.

Prior to his trial, Higgs filed a motion for a change of venue from Greenbelt, Maryland, to Baltimore, Maryland, based on the extensive media coverage of the case. The district court denied the motion. On appeal, Higgs argues that he was denied his constitutional right to a fair and impartial jury in violation of the Fifth and Sixth Amendments because the media coverage rendered a fair trial in the Greenbelt Division impossible. We review the district court's denial of Higgs's motion for a change of venue for abuse of discretion. See United States v. Bailey, 112 F.3d 758, 770 (4th Cir.1997).

As a general premise, a change of venue is warranted when the court is satisfied that there exists in the district where the prosecution is pending "so great a prejudice against the defendant" that "the defendant cannot obtain a fair and impartial trial." Fed.R.Crim.P. 21(a). The determination of whether a change of venue is required as a result of pretrial publicity involves a two-step process. See United States v. Bakker, 925 F.2d 728, 732 (4th Cir.1991). First, the district court must determine "whether the publicity is so inherently prejudicial that trial proceedings must be presumed to be tainted," and, if so, grant a change of venue prior to jury selection. Id. However, "[o]nly in extreme circumstances may prejudice to a defendant's right to a fair trial be presumed from the existence of pretrial publicity itself." Wells v. Murray, 831 F.2d 468, 472 (4th Cir.1987); see also United States v. Jones, 542 F.2d 186, 193 (4th Cir.1976) (noting that cases in which prejudice will be presumed will be rare). Ordinarily, the trial court must "conduct[] a voir dire of prospective jurors to determine if actual prejudice exists." Bakker, 925 F.2d at 732. If "voir dire reveals that an impartial jury cannot be impanelled," the trial court should then grant the motion. Id.

Higgs first asserts that he satisfied the presumed prejudice test based upon the volume of news media coverage that occurred during the four-plus years that elapsed between the time of the murders and the time that jury selection began in his case. In particular, he points to the fact that Higgs and Haynes were the first federal defendants in the Greenbelt Division to face the death penalty, that Haynes had just been tried and convicted on the same murder charges, and that news stories released just prior to his trial reported that Haynes claimed that Higgs ordered the murders and that both men were local drug dealers serving federal sentences. As evidence of the volume of coverage, he points to the fact that 130 prospective jurors and seven of those ultimately seated had read or heard about the case prior to the trial.

Although Higgs is correct that there was a large amount of media coverage when the murders occurred in late January 1996, the district court did not abuse its discretion in ruling that the coverage did not rise to the level necessary to require a change of venue. Here, although the coverage was not entirely dispassionate and factual, neither was it highly inflammatory. See United States v. De La Vega, 913 F.2d 861, 864 (11th Cir.1990) (finding "several hundred news reports" over two years which were "largely dispassionate" but "occasionally punctuated by editorial remarks" insufficient to establish presumed prejudice). In addition, the bulk of the coverage occurred contemporaneously with the murders, four years before Higgs's trial. There was additional coverage on the one-year anniversary of the murders and when the indictment was issued. However, there was no evidence of any media coverage between the time of the indictment and the November 15, 1999, initial hearing on the motion for a change of venue.

Higgs also cannot establish presumed prejudice based on the additional coverage that occurred around the time of Haynes's trial. The additional coverage was not extensive and, as found by the district court, was more factual than inflammatory. See Bakker, 925 F.2d at 732 (holding that extensive initial coverage of alleged crime a few years earlier coupled with more recent coverage of criminal proceedings which was factual was insufficient to establish presumed prejudice).

We are also unpersuaded by Higgs's assertion that he demonstrated actual prejudice because voir dire revealed that the majority of the prospective jurors knew about the case and because several prospective jurors stated that they had formed an opinion about the case based on the media reports. Under the second prong of Bailey, the district court may order a change of venue if voir dire reveals that an impartial jury cannot be impaneled due to actual prejudice of the venire members. To demonstrate actual prejudice, the defendant must show that a prospective juror has formed an pre-trial opinion that the defendant is guilty and cannot "lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

The voir dire of the jury members failed to demonstrate that an impartial jury could not be seated. Of the seated members of the jury, seven acknowledged that they had heard of the case. However, it is a long-settled proposition that mere knowledge of a case is insufficient to support a finding of actual prejudice. See Irvin, 366 U.S. at 722-23, 81 S.Ct. 1639; Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031 (1975) ("Qualified jurors need not ... be totally ignorant of the facts and issues involved."). During voir dire, the district court excused those prospective jurors who had expressed an inability to be fair and impartial. Each of the seven seated jurors who had some knowledge of the case stated that they could decide the case based solely on the evidence presented at trial. Accordingly, we affirm the district court's denial of Higgs's motion for a change of venue.

We next address Higgs's challenges to various district court rulings during the guilt phase of his trial.

A. The Telephone Conversation between Higgs and Grayson

Higgs contends that his rights under the Fifth and Sixth Amendments were violated by the district court's admission of a taped telephone conversation that took place between Higgs and his former D.C. jailhouse friend, Melvin Grayson, as well as the district court's instruction to the jury that Higgs's silence during the conversation could constitute an admission. Because Higgs did not object to the admission of the tape recording at trial, we review the admission of the evidence for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We review the district court's decision to give a particular instruction and its content for abuse of discretion. See United States v. Stotts, 113 F.3d 493, 496 (4th Cir.1997). We review jury instructions to determine "whether, taken as a whole, the instruction fairly states the controlling law." United States v. Cobb, 905 F.2d 784, 789 (4th Cir.1990). An error in the jury instruction will warrant reversal of the conviction only if "the error is prejudicial based on a review of the record as a whole." United States v. Ellis, 121 F.3d 908, 923 (4th Cir.1997).

On May 20, 2000, after Higgs was transferred to a federal penitentiary, he placed a telephone call to Grayson. During the conversation, which was recorded pursuant to prison policy, Higgs and Grayson discussed Haynes's conviction for the murders, which had been handed down the previous day. Higgs commented that Haynes's attorney had blamed the murders on Higgs and complained that the lawyer "got the whole joint twisted." J.A. 1337. Grayson subsequently read Higgs a newspaper article reporting Haynes's conviction, including the report that Haynes had claimed that he only shot the women because he was afraid of Higgs. Higgs did not respond to Grayson's reading of the article.

Higgs did not object to the admission of the tape recording at trial. At the conclusion of the trial, the district court instructed the jury that Higgs's silence during Grayson's reading of the newspaper article could be considered an admission of guilt by Higgs under Federal Rule of Evidence 801(d)(2)(B):

Now there has been testimony that while incarcerated, the defendant was silent when statements were made in his presence implicating him in the commission of the acts charged in the indictment.

If you find that the defendant was actually present and heard the statements and understood them, then you may consider the defendant's silence as an admission of their truth if you find, in accordance with your common sense and experience, that the defendant would have denied the statements had they been untrue.

However, you should bear in mind that some people will remain silent even if they are innocent. For example, an inmate who knows that his telephone calls will be monitored or recorded may choose to remain silent.

J.A. 1282-83. Higgs unsuccessfully objected to the 801(d)(2)(B) charge.

Under Rule 801(d)(2)(B), "[a] statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement of which the party has manifested an adoption or belief in its truth." "A party may manifest adoption of a statement in any number of ways, including [through] words, conduct, or silence." United States v. Robinson, 275 F.3d 371, 383 (4th Cir.2001).

When a statement is offered as an adoptive admission, the primary inquiry is whether the statement was such that, under the circumstances, an innocent defendant would normally be induced to respond, and whether there are sufficient foundational facts from which the jury could infer that the defendant heard, understood, and acquiesced in the statement.

Id. at 383 (quoting United States v. Jinadu, 98 F.3d 239, 244 (6th Cir.1996)).

We find no error in the district court's decision to admit the recorded telephone conversation between Higgs and Grayson. Higgs and Grayson were freely discussing the trial of Haynes and the accusations made against Higgs in the course of those proceedings. Higgs gave no indication that he was being silent in the face of those accusations because he knew he was being recorded. On the contrary, the recording demonstrates that Higgs not only heard and understood the statements made by Grayson, but commented upon them to some extent. Thus, we are satisfied that the district court appropriately allowed the jury the opportunity to conclude, as instructed, either that Higgs would have made his disagreement known if such existed or that he chose to remain silent because of the knowledge that he was being recorded. In view of the district court's instruction, which correctly stated the law, the district court did not abuse its discretion in admitting the evidence and charging the jury that Higgs's silence could be considered an admission under Rule 801(d)(2)(B).

B. Admission of Evidence of the Chaconia Shooting and the Bank Fraud Scheme

Higgs also contends that the district court's admission of evidence of the Chaconia nightclub shooting and the bank fraud scheme that Higgs carried out with Darby and Waters violated his rights to due process and a fair trial. At the conclusion of the government's case, the defense presented no witnesses and Higgs did not testify. With regard to the government's evidence of unrelated offenses, the court charged the jury as follows:

Now there has been evidence received during the trial that the defendant engaged in a shooting outside the Chaconia's Nightclub in November 1995, also a shooting at Cherry Lane in December 1995, bank fraud, firearm possession and also drug activity. The defendant is not on trial for these matters. They may not be used to show the bad character of the defendant on prior occasions.

Accordingly, you may not consider the evidence of these acts as substitute for proof that he committed the crimes charged in this case, nor may you consider this evidence as proof that the defendant has a criminal personality, bad character or propensity to commit crimes.

The evidence ... may, however, be considered to establish the defendant's identity, his motive, intent, and knowledge on January 27, 1996. The evidence may also be considered by you to show, one, the defendant's relationship with Willis Mark Haynes and with Victor Gloria and with Wondwossen Kabtamu, and with Enidsia Darby in criminal activity, and it may also be evidence of defendant's ownership of a firearm.

J.A. 1296-97. Higgs asserts that the district court abused its discretion in admitting this evidence during the guilt phase because it was neither intrinsic to the crimes charged nor admissible under Rule 404(b).

Reviewing the district court's admission of this evidence for an abuse of discretion, see United States v. Chin, 83 F.3d 83, 87 (4th Cir.1996), we find none. "[W]here testimony is admitted as to acts intrinsic to the crime charged, and is not admitted solely to demonstrate bad character, it is admissible." Id. at 88. "Evidence of uncharged conduct is not considered evidence of other crimes where it is necessary to complete the story of the crime on trial." United States v. Stitt, 250 F.3d 878, 888 (4th Cir.2001) (internal quotation marks omitted). "Evidence of other crimes, wrongs, or acts" that is not intrinsic to the crime may still be admissible if it demonstrates "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Crim.P. 404(b). Rule 404(b) is "an inclusive rule, admitting all evidence of other crimes or acts except that which tends to prove only criminal disposition." United States v. Young, 248 F.3d 260, 271-72 (4th Cir.2001) (internal quotation marks omitted) (emphasis added). Specifically, the evidence is admissible if (1) it is "relevant to an issue, such as an element of an offense, and [is not] offered to establish the general character of the defendant"; (2) it is "necessary in the sense that it is probative of an essential claim or an element of the offense"; (3) it is reliable; and (4) its "probative value [is not] substantially outweighed by confusion or unfair prejudice in the sense that it tends to subordinate reason to emotion in the factfinding process." United States v. Queen, 132 F.3d 991, 997 (4th Cir.1997).

The shooting at the Chaconia nightclub in Washington, D.C., took place approximately two months before the murders. According to the testimony of Wondwossen Kabtamu, Higgs got into an argument with another man and, as Kabtamu was driving away in Higgs's van, Higgs fired several shots at another vehicle with a .38 caliber handgun. According to the testimony of Domenick Williams, with whom Higgs was housed at the D.C. jail while awaiting trial on the Chaconia charges, Higgs expressed great reluctance to plead guilty to the Chaconia charges "because they would try to use the gun in another case." J.A. 975. After Williams learned that Higgs was being indicted for the murders of the three women in this case, Higgs commented to Williams, "you see why I can't plead guilty to that charge?" J.A. 979.

The victims in the case before us were indeed murdered with a .38 caliber weapon. The bullet recovered from the Chaconia shooting was forensically similar to those recovered from the Patuxent murder scene and the victims, in that they shared the same rifling characteristics — five lands and grooves with a right twist. Thus, the evidence of Higgs's participation in the Chaconia Nightclub shooting was properly introduced by the government as a means to link Higgs to the same caliber weapon that Gloria testified Higgs owned and retrieved from the drawer on the night of the murders, and one which shared the same rifling characteristics as did the murder weapon. See United States v. Grimmond, 137 F.3d 823, 831-32 (4th Cir.1998) (upholding admission of prior shooting incidents to establish the defendant's possession of a firearm). In addition, the evidence was admissible under Rule 404(b) as it and the Cherry Lane evidence placed the murder weapon, which was disposed of in the Anacostia River and never found, in Higgs's hand a short time before the murders and, therefore, served the necessary function of proving his identity as one of the murderers and his use of the firearm in connection with the murders. Consequently, we hold the district court did not abuse its discretion in ruling that the evidence was admissible, nor in ruling that its probative value outweighed its prejudicial effect under Rule 403.

Higgs also challenges the district court's admission of Darby's testimony about the unrelated bank fraud scheme that she and Waters had engaged in with Higgs. In particular, Higgs points to the death threats that ensued when authorities began to look into the matter and Higgs became concerned that the women might implicate him in the scheme. The district court admitted the evidence after concluding that it demonstrated a possible motive for the murders, and Higgs's modus operadi of issuing death threats to those that might be inclined to "snitch" on him.

We find no abuse of discretion. Gloria testified that just prior to the murders, Higgs and Jackson violently argued at Higgs's apartment, prompting Jackson to retrieve a knife from the kitchen. When the women left, Higgs made the comment to Gloria and Haynes that Jackson "do know a lot of n____s," and expressed anger that she appeared to be "writing down [his] sh__." J.A. 474. Darby testified that Higgs told her shortly after his arrest that Jackson had been invited to his apartment because she had been "snitching on one of them," J.A. 759, suggesting that retaliation may have been a motive for the murders. Thus, the challenged bank fraud and related death threats that Higgs issued when he became concerned that his partners in the fraud scheme might "snitch" on him were admissible to show Higgs's motive and intent to murder Jackson to likewise keep her from taking steps that might implement him in criminal activities or otherwise harm him in some way. Cf. United States v. Van Metre, 150 F.3d 339, 350-51 (4th Cir.1998) (holding that evidence of a prior kidnapping and sexual assault committed by the defendant was admissible to establish his motive and intent to sexually assault the deceased victim in a kidnapping-resulting-in-death case); Queen, 132 F.3d at 993-94 (upholding admission of evidence, in a witness tampering case, that the defendant had intimidated two witnesses in an unrelated, earlier prosecution); United States v. Clark, 988 F.2d 1459, 1465 (6th Cir.1993) (per curiam) (upholding admission of evidence of threats and plans to harm other witnesses to establish motive and intent to murder where the defendant was charged with the murder of a person he wanted to silence).

Finally, Higgs contends that the evidence was insufficient to support each of his convictions. In determining the sufficiency of the evidence supporting a conviction, this court must determine whether "there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); see also United States v. Perry, 335 F.3d 316, 320 (4th Cir.2003). "[S]ubstantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc).

Higgs claims that the evidence was legally insufficient to convict him of kidnapping the victims under 18 U.S.C.A. § 1201 or of first-degree murder occurring during the perpetration of a kidnapping under 18 U.S.C.A. § 1111(a). In order to establish that Higgs kidnapped the victims, the government was required to prove that each victim was "(1) unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted or carried away by any means whatsoever; and (2) was held for ransom or reward or otherwise." Chatwin v. United States, 326 U.S. 455, 459, 66 S.Ct. 233, 90 L.Ed. 198 (1946) (internal quotation marks omitted); United States v. Lewis, 662 F.2d 1087, 1088 (4th Cir.1981).

According to the testimony of Gloria, after the argument between Higgs and Jackson was broken up by Haynes, the women left the apartment on foot. After expressing anger about one of the women writing down his license plate number, Higgs retrieved the .38 caliber weapon before leaving the apartment, moments before instructing Haynes to get the women into the van. Shortly after Higgs drove past the most direct route back to the homes of the three young women, he stopped the van on the side of the road in a desolate stretch of the Patuxent National Wildlife Refuge. Aware at that point that something was amiss, one of the women asked if they were going to have to "walk from here" and Higgs responded "something like that." J.A. 482. Higgs then handed the gun to Haynes and Haynes got out of the van and shot the three women.

Higgs claims that this evidence is insufficient to show that he "unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted or carried away" the three women because they voluntarily got into Higgs's van based upon what Haynes told them and that it was also insufficient to establish that the women were "held for ransom or reward or otherwise." Chatwin, 326 U.S. at 459, 66 S.Ct. 233. We disagree. The evidence presented was more than sufficient to support the conclusion that the three women, who had left the apartment on foot during the early morning hours after t