UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Eugene BARRETT, Defendant-Appellant, 496 F.3d 1079

BRISCOE, Circuit Judge. Defendant Kenneth Barrett was convicted of using and carrying a firearm during and in relation to several drug-trafficking crimes, resulting in the death of a state law enforcement officer, in violation of 18 U.S.C. §§ 924(c)(1)(

A) and (j), using and carrying a firearm during and in relation to the killing of a state law enforcement officer engaged in or on account of the performance of such officer’s duties, in violation of 18 U.S.C. §§ 924(c)(1)(

A) and (j), and intentionally killing, during the commission of a drug trafficking crime, a state law enforcement officer engaged in the performance of his official duties, in violation of 21 U.S.C. § 848(e)(1)(B). In accordance with the jury’s verdict, Barrett was sentenced to life imprisonment without the possibility of release for the first two convictions, and to death for the third conviction. Barrett now appeals his convictions, as well as his death sentence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I.

Factual background On January 28, 1999, the District Court of Sequoyah County, Oklahoma, issued a warrant for Barrett’s arrest on charges of unlawful delivery of a controlled drug and failure to appear for jury trial. Although Barrett managed to avoid arrest during the ensuing months, state law enforcement officials were aware of his presence and continued to investigate his activities.

In September of 1999, Clint Johnson, the supervising agent and field supervisor for the District Twenty-Seven Drug Task Force (Task Force), which encompassed Cherokee, Wagoner, Adair and Sequoyah Counties in Oklahoma, received information from a confidential informant (Cl) that Barrett was manufacturing and distributing methamphetamine at his residence. Johnson, using the information provided by the Cl, prepared an affidavit for a search warrant. On September 20, 1999, the District Court of Sequoyah County issued the requested search warrant for Barrett’s residence.

The warrant authorized law enforcement officers to conduct the search “at any time of the day and/or night,” and to enter Barrett’s residence “without the normally required knocking and announcing ... due to the violent and unstable nature of ... BARRETT and the danger posed to law enforcement personnel by ... BARRETT and/or other unknown persons who may be present.” Aplee. Supp.App. at 3.

The items to be seized included methamphetamine or other controlled dangerous substances, paraphernalia, drug manufacturing equipment and supplies, and written records and documents pertaining to drug manufacturing and distribution. Johnson considered the search warrant to be “high risk” in nature. ,Tr. at 308. In particular, Johnson was aware that Barrett routinely carried firearms and had threatened to kill law enforcement officers if they “showed up at his residence.” Id. at 333.

Further, Johnson was aware that Barrett’s residence was accessible only by a dead-end road, that several of Barrett’s relatives lived in residences nearby, and that there was little cover around the residence from which the search team could perform surveillance. Accordingly, Johnson contacted the Oklahoma Highway Patrol’s Tactical Team (Tact Team) for assistance in serving the warrant. The Tact Team was “highly trained and specialized in [serving] ... high risk search warrants ....” Id. at 307. Johnson and another Task Force leader met with Tact Team members to discuss the execution of the warrant.

It was determined that the Tact Team would enter and secure the area first, and that the Task Force would then perform the actual search of Barrett’s residence. The Tact Team met during the daylight hours of September 23, 1999, arid developed a plan for entering and securing Barrett’s residence. As part of this planning process, three members of the Tact Team drove by Barrett’s residence in an unmarked Ford Bronco during the early evening hours.

Travis Crawford, Barrett’s cousin, was in the vicinity at the time of the drive-by and observed Barrett walk to the area of the front gate after the Bronco drove by his residence. Crawford spoke to Barrett and Barrett indicated he had seen the Bronco and knew it belonged to law enforcement officers. When Crawford told Barrett that the law enforcement officers would likely return, to serve the warrant, Barrett responded by saying “D.G.F.,” which, according to Crawford, meant “Don’t give a fuck.” Id. at 466. Further, Barrett told Crawford that “he was going out in a blaze of glory.” Id.

Using the informátion they observed during the drive-by, together with infori-mation provided by the Task Force, the Tact Team decided to execute the search warrant during the night with the hope that Barrett and any other occupants of the residence would be asleep.

The Tact Team further decided that, because the front gate to Barrett’s property was locked, three of the Tact Team vehicles, two Ford Broncos and a marked highway patrol unit, would enter Barrett’s property by first driving north on a private driveway that lay to the east of Barrett’s property, and then driving west across the land and through a ditch, onto Barrett’s property. The occupants of those three vehicles, six Tact Team members in total, would then get out of their vehicles, walk on foot to the house, and enter through the front door.

The Tact Team decided that a fourth unit, a marked highway patrol car, would stop at the.locked front gate of the property and that one of the occupants of that vehicle would remain.in that position to provide cover for the other team members, while the second and third occupants of that vehicle would climb over the gate, enter the property on foot, and watch the west side of Barrett’s house to prevent him from escaping to his mother’s residence, which was located adjacent to Barrett’s house.

Finally, the Tact Team decided that a fifth unit, a white Ford Bronco, would enter the driveway of Barrett’s mother’s home. At approximately 12:30 a.m. on the morning of September 24, 1999, the Tact Team met members of the Task Force at a highway intersection near Barrett’s residence. From there, the five Tact Team vehicles headed towards Barrett’s residence. The Task Force vehicles waited approximately two minutes before heading towards Barrett’s residence in order to give the Táct Team a chance to secure the area.

As the lead Tact Team vehicle, a white Ford Bronco, drove eastward on the gravel road that passed in front of Barrett’s residence, the driver, Trooper John Hamilton, observed a white male standing in the front yard of Barrett’s residence. Hamilton continued to observe the man, who was later determined to be Barrett’s son Toby, as he drove past Barrett’s residence and entered the private driveway to the east of Barrett’s residence.

Hamilton then turned his vehicle westward towards Barrett’s house and entered a deep ditch that lay between Barrett’s residence and the property to the east, and approximately twenty to 'twenty-five yards away from Barrett’s residence. Meanwhile, Troopers Gene ' Hise and Robert Darst, who arrived at the scene in the fourth Tact Team vehicle, climbed over the locked front gate, entered the yard in front of Barrett’s house, and yelled at Toby Barrett to get on the ground. Toby Barrett initially faded to comply, but ultimately got on- the ground.

Trooper Darst then took custody of Toby Barrett and determined he was unarmed. While Toby Barrett was on the ground being handcuffed, he turned his head towards the house and screamed “Dad!” Id. at 1263. As Hamilton’s vehicle exited the ditch and headed towards Barrett’s house, it began to receive gunfire that hit the middle of the windshield, at approximately “head level” of Hamilton and his passenger, Trooper David Eales. Id. at 538.

The gunfire intensified as Hamilton drove closer to Barrett’s residence, and Hamilton was hit in the face with some object, either bullet fragments or flying glass from the windshield. As a result of the continuous gunfire, neither Hamilton nor Eales were able to turn on the vehicle’s emergency lights, as the Tact Team had originally planned for them to do. The second Tact Team vehicle, a Ford Bronco occupied by Troopers Raymond Greninger and Ricky Manion, was less than a car length behind the first Tact Team vehicle.

Unlike the first vehicle, the second vehicle had its emergency lights on, including a flashing strobe-type light on the sun visor and wig-wag headlights. The third Tact Team vehicle, a marked highway patrol unit driven by Trooper Hash, also had its emergency lights on, including a full light bar on top. The lights from the light bar were bright enough to light up the entire area of Barrett’s residence. This third vehicle was traveling less than a car length behind the second vehicle.

Hamilton’s vehicle ultimately came to a stop at or near the southeast corner of Barrett’s residence, and the second and third vehicles stopped slightly behind Hamilton’s vehicle. Hamilton fell between the front seats of his vehicle in an attempt to avoid the gunfire. Hamilton’s passenger, Eales, opened the front passenger door, got out of the vehicle, and began moving towards the rear of the vehicle. At some point before he arrived at the rear of the vehicle, Eales was struck by three gunshots.

Meanwhile, Hamilton threw a diversionary device out of the driver’s side window of his vehicle, causing a noticeable flash and loud bang. The flash and bang created a stoppage of gunfire, during which Hamilton got out of the driver’s side of his vehicle. Hamilton then moved towards the rear of his vehicle. As he did so, he was shot in the back of the left shoulder. When he reached the back of the vehicle, Hamilton observed Eales face down on the ground, with Manion attempting to assist him.

From the rear of the vehicle, both Hamilton and Manion were able to observe a man, later identified as Barrett, standing in the interior doorway of the residence holding a rifle. Hamilton fired two rounds at Barrett, but did not hit him. Manion moved from the rear of Hamilton’s vehicle to the east side of Barrett’s house. From a position behind a parked truck, Manion fired two short bursts of gunfire through the east window of Barrett’s home. Some of the shots fired by Manion struck Barrett in the lower body. Hamilton observed Barrett fall face down through the front doorway and drop his rifle.

Hamilton approached and entered the house, told Barrett to get up, and Barrett responded that he could not because he had been shot. Hamilton, with the assistance of Troopers Manion and Hash, dragged Barrett out of the house and into the front yard. As the three troopers were dragging Barrett, another trooper, Danny Oliver, yelled at them that Barrett had a pistol tucked in the front of his waistband. Manion pulled Barrett’s arms out from underneath him, handcuffed him, and performed a quick pat-down. During the pat-down, Manion found the pistol that Barrett had tucked into the right side of his waistband.

Hamilton, Manion and Greninger entered the house and confirmed there were no other persons inside. After unsuccessfully attempting to provide first aid to Eales, Tact Team members transported him to a local hospital, where he was pronounced dead. An autopsy indicated that Eales suffered gunshot wounds to his chest, his left flank, and his right arm, all of which appeared to have occurred while Eales was facing away from Barrett.

The gunshot wound to the chest entered the left side of Eales’ upper back, broke four of Eales’ ribs, perforated the left upper lung lobe, and ultimately struck Eales’ aorta, causing a quarter-inch hole. The injury to Eales’ aorta was determined to be irreparable and the cause of Eales’ death. Investigation of the crime scene by law enforcement officers determined that Barrett fired approximately nineteen shots at law enforcement officers using a Colt Sporter .223 rifle.

The rifle, which had a lethal range of approximately 541 to 595 yards, was equipped with three magazines that Barrett had taped together, giving him a total of ninety-one rounds available for use at the time the shooting incident began. A search of Barrett’s property, including his house and outbuildings, produced a variety of other firearms, including a fully loaded 12 gauge shotgun and a fully loaded .22 caliber pistol.

The search also resulted in the seizure of a variety of materials related to the production and use of methamphetamine (e.g., coffee filters, hypodermic needles, digital scales, pseu-doephedrine, ephedrine tablets, iodine, plastic tubing, toluene). A search of Barrett’s person produced a plastic baggie containing red phosphorous, a lighter, and approximately $2100 in cash. Procedural background

a) State criminal proceedings On September 24, 1999, Barrett was charged by information in the District Court of Sequoyah County with one count of first degree murder and three counts of shooting with intent to kill. The information was subsequently amended to charge Barrett with one count of first degree murder, one count of shooting with intent to kill, and two counts of discharging a firearm with intent to kill. The case proceeded to trial in the fall of 2002, but ended in a hung jury on October 18, 2002. Barrett was retried in January and February of 2004.

The jury rejected the first degree murder charge and instead found Barrett guilty of the lesser-included crime of first degree manslaughter. The jury also rejected the shooting with intent to kill charge and instead found Barrett guilty of the lesser-included offense of assault and battery with a dangerous weapon. The jury acquitted Barrett on the two charges of discharge of a firearm with intent to kill. On April 19, 2004, Barrett was sentenced to a term of imprisonment of twenty years on the manslaughter conviction and ten years on the assault and battery conviction, with the two terms to run consecutively.

Barrett did not appeal his convictions or sentences.

b) Federal criminal proceedings On September 23, 2004, a criminal complaint was filed against Barrett in the United States District Court for the Eastern District of Oklahoma charging him with eight criminal counts, including intentionally killing a state law enforcement officer engaged in the performance of the state law enforcement officer’s official duties, in violation of 21 U.S.C. § 848(e)(1). On November 9, 2004, a federal grand jury returned a three-count indictment against Barrett. Id., Doc. 9.

Count 1 of the indictment charged Barrett with using and carrying a firearm during and in relation to drug trafficking crimes and possessing a firearm in furtherance of such drug trafficking offenses, resulting in death, in violation of 18 U.S.C. § 924(c)(1)(

A) and (j). Count 2 charged Barrett with using and carrying a firearm in relation to a crime of violence, i.e., the killing of a state law enforcement officer engaged in or on account of the performance of such officer’s official duties, and possessing a firearm in furtherance of such crime of violence, in violation of 18 U.S.C. § 924(c)(1)(

A) and (j). Count 3 charged Barrett with intentionally killing, during the commission of a drug trafficking crime, a state law enforcement officer engaged in the performance of his official duties, in violation of 21 U.S.C. § 848(e)(1)(B). With respect to Count 3, the grand jury made the following “Special Findings”: (

a) Barrett was 18 years of age or older at the time of the offense; (

b) Barrett intentionally killed Eales, intentionally inflicted serious bodily injury that resulted in the death of Eales, intentionally participated in

an act, contemplating that the life of a person would be taken and intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and Eales died as a direct result of the act, or intentionally and specifically engaged in

an act of violence, knowing that the act created a great risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and Eales died as a direct result of the act; and (

c) Barrett, in the commission of the drug trafficking offenses alleged in Count 3, and in escaping apprehension for a violation of said offenses, knowingly created a grave risk of death to one or more persons, to wit: John Hamilton, Jr., in addition to Eales. ROA, Vol. 1, Doc. 9 at 5-6. On February 9, 2005, the grand jury returned a superseding indictment against Barrett. Although the superseding indictment included some amendments, it contained the same three basic counts as the original indictment.

On February 15, 2005, the government filed notice of its intent to seek the death penalty with respect to all three counts with which Barrett was charged. The case proceeded to trial on September 26, 2005. On the twenty-first day of trial, November 4, 2005, the jury found Barrett guilty of all three counts. In response to special interrogatories propounded by the district court, the jury found beyond a reasonable doubt that Barrett committed murder in connection with Counts 1 and 2 (i.e., that he committed the unlawful killing of Eales with malice aforethought).

After a short break in the trial proceedings, the second-stage proceedings began on November 9, 2005. On November 17, 2005, at the conclusion of all the second-stage evidence, the jury found, in pertinent part, that Barrett was at least eighteen years old at the time of the offenses of conviction, and that, with respect to each of the three counts of conviction, he intentionally killed Eales.

As for' the statutory aggravating factors, the jury found, with respect to Counts 1 and 2, that Barrett killed or attempted to kill more than one person, i.e., John Hamilton, Jr., and David Eales, in a single criminal episode, and committed the offenses after substantial planning and premeditation to cause the death of a person.

With respect to Count 3, the jury found that Barrett, in the commission of the offense or in escaping apprehension for the offense, knowingly created a grave risk of death to one or more persons in addition to Eales, and that Barrett committed the offense after substantial planning and premeditation.

As for the non-statutory aggravating factors, the jury found, with respect to all three counts of conviction, that Barrett caused injury, harm, and loss to the victim’s family, but rejected the government’s assertion that Barrett was likely to commit criminal acts of violence in the future which would be a continuing and serious threat in an institutional correctional setting to the lives or safety of other persons.

As for mitigating factors, some or all of the jurors found the existence of the following factors with respect to all three counts: • Barrett had accepted responsibility for the death of Eales from his previous conviction (found by five jurors with respect to each count); • Barrett had been convicted and punished for the death of Eales (found by five jurors with respect to each count); • Barrett, at the time of the shooting incident, had no prior felony convictions (found by all twelve jurors with respect to each count); • Barrett was a father (found by all twelve jurors with respect to each count); • Barrett was a loved son and stepson (found by all twelve jurors with respect to each count); • Barrett was a good neighbor and friend (found by seven jurors with respect to each count); • Barrett’s death would impact his child, family and friends (found by all twelve jurors with respect to each count); • Barrett would not present a future danger to society by being imprisoned for life without possibility of release as demonstrated by his incarceration since September 24, 1999 (found by two jurors with respect to each count); • That other factors in Barrett’s childhood, background or character mitigated against imposition of the death sentence (found by one juror with respect to Counts 1 and 2, and by two jurors with respect to Count 3); • That Barrett never left his residence during 1999 (found by one juror with respect to each count); and • That Sequoyah County Sheriff Johnny Philpot had mistreated Barrett when Barrett was seventeen years old (i.e., Philpot had an altercation with Barrett during which Philpot broke Barrett’s jaw) (found by six jurors with respect to each count).

Id. at 20-27. Ultimately, the jury found that sentences of life imprisonment without the possibility of release should be imposed with respect to Counts 1 and 2, and that a sentence' of death should be imposed with respect to Count 3. On December 19, 2005, the district court conducted a sentencing proceeding during which it imposed the sentences recommended by the jury. Judgment was entered in the case on December 29, 2005. II. 1. Did the district court err in denying the motion to suppress?

Prior to trial, Barrett moved to suppress evidence seized from his residence and surrounding property following the shooting, as well as all statements he made to law enforcement officers following his arrest. The district court denied Barrett’s motion to suppress, “except as to the guns seized under but not specified in the drug search warrant....” ROA, Vol. 1, Doc. 124 at 2.

On appeal, Barrett contends the district court erred in denying his motion to suppress. “In reviewing a district court’s denial of a motion to suppress, we consider the totality of the circumstances and view the evidence in a light most favorable to the government, accepting the district court’s factual findings unless clearly erroneous.” United States v. Trotter, 483 F.3d 694, 698 (10th Cir.2007) (internal quotation marks omitted). “We review de novo the ultimate question of the reasonableness of a search.” Id.

Although violations of state law may be relevant in making this determination, such violations do “not, without more, necessarily [result] in a federal constitutional violation.” United States v. Mi-kulski, 317 F.3d 1228,1232 (10th Cir.2003). The following factual findings were made by the magistrate judge after conducting an evidentiary hearing on Barrett’s motion to suppress, and Barrett has not challenged those findings on appeal: Clint Johnson, an Oklahoma drug task force agent, secured a state court warrant to search the Defendant’s home for drugs.

Agent Johnson had information that the Defendant had threatened “to kill the first cop through the door,” and that there were guns around the house, so,he sought the assistance of the Oklahoma Highway Patrol with entering and securing the Defendant’s home. The federal drug task force of the Drug Enforcement Agency also was notified because Agent Johnson anticipated there would be a methamphetamine lab to clean up at the scene, although the federal agents were not expected to participate in the raid itself. * * * The Oklahoma State Bureau of Investigation was called in to investigate the shooting.

Agency Vicky Jones (now Lyons) obtained another state court warrant to search the Defendant’s home as part of the crime scene. After that search was completed, Agent Beal [a Pittsburg County Sheriffs Deputy who was on detail with the Drug Enforcement Administration’s drug task force] and two other DEA task force agents executed the original drug search warrant because they arrived at the scene after the shooting and were considered to be less affected by it than the state agents. ROA, Vol. 1, Doc. 105 at 2.

a) Failure of warrant to satisfy Oklahoma standards for nighttime warrant Barrett first contends that the original search warrant issued for his residence (i.e., the one that -prompted the utilization of the Tact Team) was invalid because it failed to satisfy the conditions required under Oklahoma law for service of a nighttime warrant. More specifically, Barrett argues that, although Oklahoma law required the judge who issued the warrant to find a “likelihood that the property named in the search warrant w[ould] be destroyed, moved or concealed,” Okla.

Stat. tit. 22 § 1230(3), it “is unreasonable to argue that all of the drug evidence which the officers anticipated finding would be destroyed or moved, especially considering the anticipation that besides drugs, ingredients and utensils for manufacturing would be found on the premises, and considering that there was an on-going investigation with no indication whatsoever that drug activity had or would cease.” Aplt. Br. at 20. As a threshold matter, we note that Barrett never raised this issue below. Accordingly, the issue is subject to review only for plain error. United States v.

Teague, 443 F.3d 1310, 1314 (10th Cir. 2006). Under the plain error doctrine, “we will reverse the judgment below only if there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). Turning to the merits of the issue, we conclude there was no error on the part of the district court, let alone plain error.

At the time the search warrant for Barrett’s residence was issued and executed, Oklahoma law required search warrants “for occupied dwellings” to be “served between the hours of six o’clock a.m. and ten o’clock p.m., unless the judge fiound] the existence of at least one of’ three enumerated exceptions. Okla. Stat. tit. 22 § 1230.

Barrett focuses exclusively on the third such exception, which encompasses cases in which the affiants are “positive that the property is ..in the place to be searched and ... there is likelihood that the property named in the search warrant will be destroyed, moved or concealed....” Okla. Stat. tit. 22 § 1230(3). He ignores, however, the first exception, which encompasses cases in which “[t]he evidence is located on the premises only between the hours of ten o’clock p.m. and six o’clock a.m.” Id. § 1230(1).

Notably, the magistrate judge in this case found in his report and recommendation, and Barrett has not disputed below or on appeal, that “[t]he underlying affidavit set forth facts indicating that the only time drug evidence would be found [at Barrett’s residence] was at night.” ROA, Vol. 1, Doc. 105 at 11. Thus, it is clear that the first statutory exception was applicable in this case and allowed the judge who issued the search warrant to allow the warrant to be served at night time.

In other words, there was no violation of Oklahoma state law, let alone a federal constitutional violation that would justify suppression of the evidence seized from Barrett’s residence. See Mikulski, 317 F.3d at 1232.

b) Failure of warrant to satisfy Oklahoma standards regarding executing officers Barrett next complains that the search of his residence was improper because the original search warrant was executed by federal law enforcement officers (i.e., DEA task force members) rather than by Oklahoma state law enforcement officers. In support of his argument, Barrett points to Okla. Stat. tit. 22 § 1225(A), which provides, in pertinent part, that a search warrant must be issued “to a peace officer of this state.... ” Because Barrett failed to raise this issue below, it is subject to review only for plain error.

At the outset, we conclude that Barrett has failed to properly interpret § 1225(A). Specifically, the term “peace officer,” as used in the Oklahoma criminal statutes, is expressly defined to “meant ] any sheriff, police officer, federal law enforcement officer, or any other law enforcement officer whose duty it is to enforce and preserve the public peace.” Okla. Stat. tit. 21 § 99 (emphasis added). Applying that definition to § 1225(A), it is clearly permissible for an Oklahoma state magistrate to issue a search warrant to a federal law enforcement officer.

Indeed, that is precisely what occurred here; the search warrant for Barrett’s residence was issued to not only state law enforcement officers, but also to “Special Agents and Task Force Officers of the Drug Enforcement Administration, Special Agent[s] with the Bureau of Alcohol, Tobacco and Firearms, or any other ... federal peace officer.” Aplee. Supp.App. at 2. In turn, Oklahoma law provides that “[a] search warrant may in all cases be served by any of the officers mentioned in its direction-” Okla. Stat. tit. 22 § 1227.

Thus, we conclude it was permissible under Oklahoma law for the federal law enforcement officers mentioned in the search warrant to be involved in the execution of the warrant. In turn, we conclude there was no constitutional violation arising out of the federal officers’ involvement that would justify suppression of evidence seized during execution of the warrant.

c) Failure of warrant to comply with Fed.R.Crim.P. fl Lastly, Barrett contends that, should we determine that the search was federal, rather than state, in character, then the warrant was invalid because it failed to comply with the requirements of Federal Rule of Criminal Procedure 41 “designed to protect the integrity of the federal courts or to govern the conduct of federal officers.” United States v. Millar, 543 F.2d 1280, 1283-84 (10th Cir.1976).

Specifically, Barrett complains that the warrant was not requested by or issued to a federal officer, and failed to designate a federal magistrate to whom it should be returned. Again, there is no indication in the record that Barrett raised this issue below, and thus it is subject to review only for plain error. “Generally, a warrant is not federal in character if no federal agents participated in obtaining the warrant or in conducting the search.” United States v. Gobey, 12 F.3d 964, 967 (10th Cir.1993).

We have also suggested that a warrant will retain its “state character” if there was only “minimal ... federal involve-ment_” Millar, 543 F.2d at 1283. A review of the record on appeal indicates that is precisely the situation here. As noted, the warrant was requested by a state law enforcement officer, was issued by a state magistrate judge, and the original plan had been for only state law enforcement officers to execute the warrant. However, as a result of the shooting and its impact on the officers who had intended to execute the warrant, DEA task force agents were asked to actually perform the search.

Notwithstanding this involvement of DEA task force agents, there was no evidence that a federal prosecution was envisioned at the time of the search. See United States v. Fort, 478 F.3d 1099, 1106 (9th Cir.2007) (holding that strictures of Rule 41 apply to local officials only if “from the beginning it was assumed a federal prosecution would result”) (internal quotation marks omitted). In light of these unique circumstances, we are not persuaded that the DEA agents’ involvement was sufficient to render the warrant federal in character.

d) Suppression on double jeopardy grounds At the end of his discussion of the district court’s denial of his motion to suppress, Barrett suggests, in passing, that the evidence seized during the search of his residence should be suppressed because there was no compelling reason for the Department of Justice to file and prosecute this case after he was charged and convicted in Oklahoma state court.

Aside from the fact that this issue was not raised in Barrett’s motion to suppress, a successful double jeopardy claim would require dismissal of the entire case, not just suppression of certain evidence, and, for the reasons discussed below, we conclude there is no merit to Barrett’s double jeopardy arguments. 2. Challenges to the indictment Barrett attacks the indictment on three general grounds, i.e., that it “[1] was insufficient, [2] improperly charged multiple crimes and [3] improperly joined offenses.” Aplt. Br. at 35.

We proceed to address these general grounds, along with the specific arguments included therein.

a) Sufficiency — failure to set forth elements of predicate offenses Barrett contends “[t]he Indictment was insufficient as it did not set forth the elements of the predicate offenses [on Counts 1 and 2], and further there was no predicate offense charged for which Count 1 could be based.” Id. at 36-37. In addition, Barrett argues, “[t]he jury did not find [him] guilty of any predicate offense [with respect to any of the counts in the indictment], and the jury was not instructed to find [him] guilty of a predicate offense.” Id. at 37. Generally speaking, we review the sufficiency of an indictment de novo.

United States v. Todd, 446 F.3d 1062, 1067 (10th Cir.2006). Barrett did not, however, present his sufficiency challenges to the district court. Thus, we must determine what standard of review to apply to those challenges. In previous decisions, we have held that such claims are jurisdictional in nature, can be raised at any time during the pendency of the proceedings, and therefore that application of the plain error standard is inappropriate. E.g., United States v. Gamar-Bastidas, 222 F.3d 779, 785 n. 4 (10th Cir.2000). However, in United States v.

Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Edüd 860 (2002), the Supreme Court made clear that defects in an indictment are not jurisdictional, and that challenges to such defects are thus subject to plain error review if not properly raised in the district court proceedings. Id. at 631, 122 S.Ct. 1781 (“Freed from the view that indictment omissions deprive a court of jurisdiction, we proceed to apply the plain-error test of Federal Rule of Criminal Procedure 52(

b) to respondents’ forfeited- claim.”). Thus, in accordance with Cotton, we review Barrett’s sufficiency claims only for plain error. Barrett first asserts that the superseding indictment was insufficient because it failed to list the elements of the underlying offenses identified in Counts 1 and 2. Counts 1 and 2 of the superseding indictment charged Barrett with violating 18 U.S.C. §§ 924(c)(1)(

A) and <j).

Section 924(e)(1)(

A) states, in relevant part: [A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime ... be sentenced to a term of imprisonment of not less than 5 years. 18 U.S.C. § 924(e)(1)(A). In turn, § 924© states, in relevant part: © A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall— (1) if the killing is a murder (as defined in

section 1111), be punished by death or by imprisonment for any term of years or for life.... 18 U.S.C. § 924©. Count 1 of the superseding indictment alleged that on or about September 24, 1999, Barrett knowingly used and carried eleven different firearms, each identified by type and serial number, in furtherance of four specific drug trafficking crimes, i.e., possession of 181.6 grams of pseu-doephedrine, a list I chemical and 144.3 grams of iodine, a list II chemical, knowing or having reasonable cause to believe that the pseudoephedrine and iodine would be used to manufacture methamphetamine, in violation of Title 21, United States Code,

Section 841(c); possession of red phosphorous, a precursor chemical, knowing, intending, and having reasonable cause to believe that it would be used to manufacture methamphetamine, in violation of Title 21, United States Code,

Section 843(a)(6); attempting to manufacture methamphetamine, in violation of Title 21, United States Code, Sections 846 and 841(a); and maintaining a place for the purpose of manufacturing, distributing, and using methamphetamine, in violation of Title 21, United States Code,

Section 856.... ROA, Vol. 1, Doc. 52 at 1-2. In addition, Count 1 alleged that in the course of this violation, Barrett “caused the death of David Eales through the use of a firearm .... ” Id. at 2. Similarly, Count 2 alleged that on or about September 24,1999, Barrett knowingly possessed eleven different firearms, each identified by type and serial number, in furtherance of “a crime of violence, to-wit: Title 21, United States Code,

Section 848(e)(1)(B), the killing of a state law enforcement officer engaged in or on account of the performance of such officer’s duties,” and “in the course of this violation, caused the death of David Eales, through the use of a firearm....” Id. at 2-3. The key question is whether these allegations satisfy the sufficiency standards mandated by this court.

Under Tenth Circuit precedent, an indictment is considered sufficient “if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense.” Todd, 446 F.3d at 1067 (internal quotation marks omitted); see Fed.R.Crim.P. 7(c) (outlining general requirements of indictment). In United States v. Jackson, 327 F.3d 273 (4th Cir.2003), the Fourth Circuit addressed a substantially similar challenge to an indictment.

The defendant therein, Richard Jackson, was convicted by a federal jury of using a firearm during and in relation to kidnapping, sexually abusing, and murdering a woman in violation of 18 U.S.C. § 924(j), and was sentenced to death in accordance with the jury’s recommendation. Jackson, like Barrett in this case, complained for the first time on appeal that the indictment in.bis case failed to “recite,” as part of the § 924 charge, “all the elements of the underlying crime of kidnapping, as defined by 18 U.S.C. § 1201.” 327 F.3d at 290.

Two of the three panel members assumed, without deciding, that the first three prongs of the plain error test were satisfied, but rejected the claim on the grounds that the alleged error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id. at 305.

The remaining panel member concurred in the result, but rejected the argument on the merits, stating: Established rules of pleading in an indictment do not require that each term or fact be fully defined, so long as the defendant is provided fair notice of the elements of the offense with which he is charged and sufficient detail so that he can plead an acquittal or a guilty verdict as a bar to a subsequent prosecution for the same offense, (citations omitted).

But while it is true that an indictment must include all the elements of an offense, these elements may employ the statutory language defining the offense, (citations omitted). In this case, Jackson was charged with the offense set forth in 18 U.S.C. § 924(j)(l), coupled with the fact that the violation involved an aggravating factor to justify the imposition of the death penalty. The crime is charged simply by alleging all the elements of the murder together with a sufficient disclosure of an aggravating factor to inform the defendant of the crime charged.

One aggravating factor identified in Jackson’s indictment is the commission of the crime of kidnapping, as specified by 18 U.S.C. § 1201. Jackson does not dispute that the indictment fairly describes a violation of § 924(3)(1) and of 18 U.S.C. § 1111(a), defining first-degree murder. Nor can he dispute the fact that the indictment alleges that the death resulting from the charged offense occurred during the commission of a felony, i.e., kidnapping as specified in 18 U.S.C. § 1201(a)(2). His only complaint is that the elements of kidnapping are not also set forth.

But kidnapping is not the offense with which Jackson was charged. Rather, the fact that death occurred during a kidnapping is only an element of the aggravated offense with which he was charged. The reference to kidnapping together with a specific reference to the statutory definition of the crime adequately informs Jackson of the particular element of the aggravated crime, that an aggravating factor existed, (citation omitted). Id. at 290. We find the concurring panel member’s reasoning persuasive and applicable to Barrett’s case.

Barrett does not dispute that the superseding indictment sets forth each of the essential elements of the § 924 charges alleged in Counts 1 and 2. Further, Counts 1 and 2 of the superseding indictment clearly gave Barrett fair notice of the charges he had to defénd against, and likewise were sufficient to enable him to assert a double jeopardy defense (and he does not argue otherwise). It is true that neither Count 1 nor Count 2 listed the essential elements of the underlying crimes (i.e., the four drug-trafficking crimes identified in Count 1 and the crime of violence identified in Count 2).

But, like the defendant in Jackson, Barrett was not directly charged with those underlying offenses. Thus, the identification of each of the underlying crimes, “together with [the] specific reference^] to the statutory definition[s] of th[os]e crime[s] adequately inform[ed]” Barrett of th& crimes he was being charged with, enabled him to prepare a defense to those crimes, and provided sufficient information to allow him, if necessary, to mount a double jeopardy defense. 327 F.3d at 290. As for Barrett’s second sufficiency-related argument, it is unnecessary for a criminal defendant charged with a § 924(

c) offense to be separately charged with and convicted of the underlying offense. E.g., United States v. Zhou, 428 F.3d 361, 378 n. 15 (2d Cir.2005) (citing cases from various circuits); United States v. Frye, 402 F.3d 1123, 1128 (11th Cir.2005).

Thus, contrary to Barrett’s assertions, the district court was under no obligation to instruct the jury that it was necessary to convict Barrett of the underlying offenses alleged in Counts 1 and 2, or for the jury to have convicted him of such (although the jury, in the course of finding Barrett guilty of the § 924 charges, necessarily had to have found that Barrett committed at least one underlying offense with respect to each Count 1 and 2). See United States v.

McKissick, 204 F.3d 1282, 1292 (10th Cir. 2000) (holding that, “in order to establish a violation of § 924(c), the Government ha[s] the burden to prove,” in pertinent part, the commission of the underlying offense). Similarly, it is unnecessary for a defendant charged with violating 21 U.S.C. § 848(e)(1)(B), i.e., the charge alleged in Count 3 of the superseding indictment in this case, to be separately charged with and convicted of a predicate drug-trafficking crime. To be sure, an essential element of a § 848(e)(1)(

B) violation is that the killing of the state law enforcement officer occurred “during the commission of, in furtherance of, or while [the defendant was] attempting to avoid apprehension, prosecution or service of a prison sentence for ... a felony violation of’ Subchapters I or II of

Chapter 13 (Drug Abuse Prevention and Control) of Title 21. 21 U.S.C. § 848(e)(1)(B). However, it is clear that Congress intended for § 848(e)(1)(

B) to establish a substantive offense separate from any such predicate offense. United States v. NJB, 104 F.3d 630, 633 (4th Cir.1997); United States v. Villari'eal, 963 F.2d 725, 728 (5th Cir.1992). Therefore, we find no persuasive reason why a violation of § 848(e)(1)(

B) cannot be charged independently of the defendant being charged with or convicted of a predicate offense. Finally, we note that although Barrett cites to the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) in support of his arguments, that decision has no bearing on the issues he raises. In Ring, the Court held that an aggravating factor necessary for imposition of the death penalty has to be found by a jury and cannot be determined by a sentencing judge. 536 U.S. at 609, 122 S.Ct. 2428.

To be sure, the circuit courts considering the issue have unanimously concluded that the holding in Ring applies with equal force in the context of a Fifth Amendment challenge to the lack of statutory aggravating factors in an indictment charging a death-eligible crime under the Federal Death Penalty Act (FDPA). See United States v. Brown, 441 F.3d 1330, 1367 (11th Cir.2006); United States v. Allen, 406 F.3d 940, 942-43 (8th Cir.2005) (en banc); United States v. Robinson, 367 F.3d 278, 284 (5th Cir.2004); United States v. Higgs, 353 F.3d 281, 297-98 (4th Cir.2003).

Here, however, that requirement was clearly satisfied, and it is not otherwise apparent how Ring is relevant to Barrett’s assertion that it was necessary for Counts 1 and 2 of the superseding indictment to specifically allege the elements of the. underlying offenses identified therein.

b) Multiplicity Barrett next contends that the indictment was multiplicitous. Aplt. Br. at 41. According to Barrett, “all counts [in the indictment] [we]re based on the same conduct, firearms and drugs, and for killing the same person.” Id. at 42. Because Barrett did not raise this issue below, it is subject to review only for plain error. United States v. McCullough, 457 F.3d 1150,1162 (10th Cir.2006). “Multiplicity refers to multiple counts of an indictment which cover the same criminal behavior.” United States v. Johnson, 130 F.3d 1420, 1424 (10th Cir. 1997).

Although “multiplicity is not fatal to an indictment,” id. (internal quotation marks omitted), multiplicitous counts which may result in multiplicitous convictions are considered “improper because they allow multiple punishments for a single criminal offense.” United States v. Jenkins, 313 F.3d 549, 557 (10th Cir,2002). “[Mjultiplicitous sentences violate the Double Jeopardy Clause.” United States v.

Morris, 247 F.3d 1080, 1083 n. 2 (10th Cir .2001). “The test [for multiplicity] is whether the individual acts [alleged in the counts at issue] are prohibited, or the course of [conduct] which they constitute.” United States v. Graham, 305 F.3d 1094, 1100 (10th Cir.2002) (third alteration in original) (internal quotation marks omitted). “If the former, then each act is punishable separately. If the latter, there can be but one penalty.” Id. (internal quotation marks omitted).

Where multi-plicitous convictions are found, “the only remedy ... is ... to vacate ond of the underlying convictions as well as -the ... sentence based upon it.’ Rutledge v. United States, 517 U.S. 292, 301-02, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (internal quotation marks omitted).

The question we face here is whether the three counts alleged in the superseding indictment were based on a single “unit of prosecution.” As noted, Count 1 charged Barrett with using and carrying a firearm during and in relation to several drug-trafficking crimes, resulting in the death of Eales, in violation of 18 U.S.C.- § 924(c)(1)(

A) and (jX To sustain its burden of proof against Barrett on this charge, the government was required to prove that

(1) Barrett committed one or more of the predicate drug-trafficking offenses, (2) during and in relation to the predicate offense(

s) Barrett , knowingly used and carried a firearm, (3) the firearm played an integral role in the predicate offense(

s) and (4) in the course of using the firearm Barrett killed Eales. ROA, Vol. 3, Doc. 240, Instruction No. 7. Count 2 charged Barrett with using and carrying a firearm during, and in relation to a crime of violence, i.e., the killing of a state law enforcement officer engaged in or on account of the performance of such officer’s duties, in violation of 18 U.S.C. § 924(c)(1)(

A) and (j). To sustain its- burden of proof against Barrett on this charge, the government was required to prove that

(1) Barrett committed the predicate offense, (2) during and in relation to the commission of the predicate offense, Barrett knowingly used or carried, or in furtherance of such offense possessed a firearm, (3) the firearm played an integral

part in the predicate offense, and (4) during the commission of the predicate offense Barrett caused the death of Eales with the firearm. Id. Finally, Count 3 charged Barrett with intentionally killing, during the commission of a drug trafficking crime, a state law enforcement officer engaged in the performance of his official duties, in violation of 21 U.S.C. § 848(e)(1)(B). To sustain its burden of proof against Barrett on this charge, the government was required to prove, in pertinent part, that Barrett intentionally killed Eales, a state law enforcement officer engaged in or on account of his official duties.

Id., Instruction No. 15. Applying Tenth Circuit precedent, we conclude that Counts 1 and 2 were not multiplicitous as to each other. It is true that both counts were based on Barrett’s commission of several underlying offenses with a single, continuous use of a firearm. In United States v. Sturmoski, 971 F.2d 452 (10th Cir.1992), however, we held that multiple § 924(

c) counts are permissible so long as the offenses underlying each § 924(

c) count do not constitute a single offense for double jeopardy purposes. Id. at 461. Applying that principle here, it is clear that Congress intended to permit multiple convictions and sentences for drug-trafficking crimes, such as the four underlying such crimes listed in Count 1, and the underlying crime listed in Count 2, i.e., intentionally killing, during the commission of a drug trafficking crime, a state law enforcement officer engaged in the performance of his official duties, in violation of 21 U.S.C. § 848(e)(1)(B). Indeed, Barrett does not seriously dispute otherwise.

Because the crimes underlying Count 1 are distinct from the crime underlying Count 2, the two § 924 counts are in turn considered distinct. We further conclude that Count 3 is not multiplicitous as to either Count 1 or 2. In particular, it is clear from examining the language of § 924, the statute under which Counts 1 and 2 were charged, and 21 U.S.C. § 848(e)(1)(B), the statute under which Count 3 was charged, that Congress intended to permit multiple convictions and sentences for violations of these distinct statutes. In other words, nothing suggests that Congress intended that a conviction under § 848(e)(1)(

B) would prohibit a simultaneous conviction under § 924(c), even though the two convictions may be based on the same general act of using a firearm to intentionally kill a state law enforcement officer engaged in the performance of his or her official duties. That is because § 848(e)(1)(

B) is focused on criminalizing the intentional killing of state law enforcement officers under certain circumstances, while § 924(

c) is focused on criminalizing the use of firearms in connection with certain offenses. E.g., United States v. Amaya-Portillo, 423 F.3d 427, 437 (4th Cir.2005) (noting that the purpose of § 924(

c) is to punish criminals who use firearms during and in relation to certain crimes); United States v. McCul-lah, 76 F.3d 1087, 1105 (10th Cir.1996) (“Congress has clearly expressed its intention that the § 848(

e) punishment be cu- ■ mulative with any other applicable punishment”).

c) Misjoinder Barrett also contends the indictment “improperly joined offenses.” Aplt. Br. at 42. Rule 8(

a) of the Federal Rules of Criminal Procedure governs the joinder of offenses and provides: The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged — whether felonies or misdemeanors or both — are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. Generally speaking, “the alleged misjoin-der of offenses under Rule 8 is a question of law subject to de novo review.” United States v. Johnson, 130 F.3d 1420, 1427 (10th Cir.1997).

Here, however, Barrett did not assert any misjoinder issues below. Thus, the arguments he now presents regarding misjoinder are subject to review only for plain error. See United States v. Carter, 481 F.3d 601, 606-07 (8th Cir.2007) (applying plain error standard where defendant moved for a severance prior to trial, but did not renew his motion during trial). We reject Barrett’s misjoinder arguments as wholly lacking in merit. Generally speaking, “we construe Rule 8 broadly to allow liberal joinder to enhance the efficiency of the judicial system.” Johnson, 130 F.3d at 1427.

In Barrett’s case, it is clear that the three counts alleged in the superseding indictment fall readily within the scope of Rule 8(

a) because they “are based on the same act or transaction....” More specifically, all three counts arise out of the shooting incident that occurred on September 24, 1999, when the Tact Team attempted to serve the search warrant on Barrett’s property and Barrett responded by firing multiple gunshots at Tact Team members, resulting in the death of Trooper Eales. Even if there was doubt as to the proper joinder of the three claims, Barrett has failed to make the requisite “strong showing of prejudice-” Johnson, 130 F.3d at 1427.

On this point, Barrett asserts he was prejudiced “because his association with drugs and firearms would necessarily be highly inflammatory in the minds of the jurors, especially when a killing occurs.” Aplt. Br. at 43. In other words, Barrett suggests that the “jury [wa]s likely to ... infer a criminal disposition on [his] part” due to his involvement with drugs and firearms. Id. at 42. Barrett also suggests that jury confusion likely resulted from “the numerous counts and the fact that the Counts were even brought under two death penalty schemes requiring different application of aggravating factors.” Id.

We have previously held, however, that “[n]either a mere allegation that .defendant would have a better chance of acquittal in a separate trial, nor a complaint of the ‘spillover effect’ ... is sufficient to warrant severance.” United States v. Wiseman, 172 F.3d 1196, 1211 (10th Cir.1999) (internal quotation marks omitted). Further, the fact that the counts involved “different application of aggravating factors” is irrelevant to the Rule 8(

a) analysis and, in any event, it is apparent from the verdicts that the jury was able to independently assess the proper penalty for the counts of conviction because it rejected the death penalty in connection with Counts 1 and 2, but chose to impose the death penalty for Count 3. 3. Admission of improper victim impact evidence Barrett contends that the district court erred in admitting what he describes as improper victim impact evidence.

More specifically, Barrett complains that certain portions of the testimony of William DeW-eese (a friend of Eales), Gene Hise (a fellow Oklahoma State trooper), Eales’ widow, Eales’ sister, and Eales’ mother was improper because it “failed to focus on the characteristics of ... Barrett.” Aplt. Br. at 46. Further, Barrett complains that his Sixth Amendment right to confrontation was violated when Eales’ widow was permitted to describe to the jury a drawing made by her young son and to read to the jury an essay written by her young daughter. Id. at 52.

Finally, Barrett summarily objects to the admission of four photographs of the victim, arguing they were “emotional and highly prejudicial.” Id. at 51. It is true, as noted by Barrett in his opening brief, that he filed a motion in limine “Regarding Victim Impact Evidence.” ROA, Vol. 2, Doc. 202 at 1. That motion, however, objected only to the admission of testimony from friends of the victim. In other words, the motion argued that only the family of the victim could offer victim impact testimony. Thus, the motion did not include all of the arguments Barrett now seeks to assert on appeal.

As a result, any additional issues not raised and preserved by subsequent objection are subject to review only for plain error. To the extent that Barrett is suggesting that all second-stage evidence must focus on the “characteristics” of the capital defendant, he is clearly wrong. In Payne v.

Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the Supreme Court noted that it had long “required that [a] capital defendant be treated as a uniquely individual human being,” but emphasized that it had “never held or even suggested ... that the defendant, entitled as he was to individualized consideration, was to receive that consideration wholly apart from the crime which he had committed,” i.e., without allowing the sentencing authority to consider victim impact evidence. Id. at 822, 111 S.Ct. 2597 (internal quotation marks omitted).

Continuing, the Court stated that victim impact evidence “is designed to show ... each victim’s uniqueness as an individual human being,” id. at 823, 111 S.Ct. 2597 (internal quotation marks omitted), “is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question,” and thus, “[i]n the majority of cases, ... serves entirely legitimate purposes.” Id. at 825, 111 S.Ct. 2597.

Ultimately, the Court overruled its prior precedent and held that it was constitutionally permissible for a state (or in this case the federal government) to “conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant,” including evidence of how “the victim [wa]s an individual whose death represented] a unique loss to society and in particular to his family.” Id. (internal quotation marks omitted).

In other words, the Court held, “[a] State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed.” Id. at 827, 111 S.Ct. 2597 (emphasis added); see also id. at 830, 111 S.Ct. 2597 (“A State may decide ... that the jury should see a quick glimpse of the life petitioner chose to extinguish, ... to remind the jury that the person whose life was taken was a unique human being.”) (internal quotation marks omitted) (O’Connor, J., concurring).

Although Barrett argues that Congress has expressly limited victim impact evidence in federal death penalty cases to evidence “ ‘concerning the effect of the offense on the victim and the victim’s family,’ ” Aplt. Br. at 45, he is again mistaken.

The statute Barrett cites to, 18 U.S.C. § 3593(a), describes the type of written notice that the government must file if it “believes that the circumstances of the offense [at issue] are such that a sentence of death is justified,” and provides that such notice must “set[ ] forth the aggravating factor or factors that the government ... proposes to prove as justifying a sentence of death.” 18 U.S.C. § 3593(a)(2).

In turn, the statute states: The factors for which notice is provided under this subsection may include factors concerning the effect of the offense on the victim and the victim’s family, and may include oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim’s family, and any other relevant information. Id. § 3593(a). Two features of this statutory language are important to note.

First, it expressly indicates that a victim impact statement may identify the victim and outline the extent and scope of the injury and loss suffered by the victim and his family. Second, and perhaps. more importantly, the use of the phrases “may include” and “any other relevant information” clearly suggests that Congress intended to permit the admission of any other relevant evidence, including, as authorized by Payne, evidence giving the jury a glimpse of the victim’s personality and the life he led. Indeed, this court and others have expressly approved the admission of such evidence. See United States v.

Barnette, -211 F.3d 803, 818 (4th Cir.2000) (affirming that victim impact evidence providing a “quick glimpse of the life” of the victim is admissible in a federal death penalty case); United States v.

McVeigh, 153 F.3d 1166, 1219 (10th Cir. 1998) (rejecting objection to admission of evidence “about the professional and personal histories of victims who perished in the bombing, including reflections on the admirable qualities of the deceased,” noting that “the unique qualities of a murdered individual and his or her life accomplishments constitute the core impact evidence describing a victim’s ‘uniqueness as an individual human being’ allowed by Payne ”).

Applying these principles to the facts presented here, we conclude that the victim impact testimony now objected to by Barrett was relevant and properly admitted by the district court to show Eales’ uniqueness as an individual human being.

This includes: • testimony from William DeWeese, a longtime friend of Eales, describing his time with Eales in the Marine Corp, his travels with Eales, the connection between their two' families, and the impact Eales had on his life; ' • testimony from Nancy Stalcup, Eales’ sister, about Eales’ “beautiful blue eyes,” the last time she saw Eales, and the positive impact Eales had on her young son; • testimony from Bobbi Eales, Eales’ mother, the bulk of which briefly described the impact that Eales’ death had on her and her family members; • testimony from Gene Hise, a fellow Oklahoma Highway Patrol trooper, briefly describing the personal and professional characteristics of Eales, and briefly describing the impact that Eales’ death had on him; and • testimony from Kelli Eales, Eales’ widow, briefly describing her relationship and life with Eales, and the impact that Eales’ death had on her and her children.

In our view, this evidence fell within the scope of the type of victim impact evidence envisioned by Payne, and was not “so unduly prejudicial that it rendered] the trial fundamentally unfair” in violation of Barrett’s due process rights. 501 U.S. at 825, 111 S.Ct. 2597. Thus, we conclude there was no error, let alone plain error, arising from the admission of this victim impact testimony. ■ Barrett also challenges the district court’s decision to allow Kelli Eales to (

a) describe to the jury a picture her son, who was two years old at the time of the murder, drew picturing Eales on top of the family’s house watching over them, and (

b) read a short essay written by her daughter, who was six years old at the time of the murder, stating, in part: “other kids go through their entire life not having a good father. I am thankful that my dad showed me how to love in six and a half short years to last me my whole life.” According to Barrett, this evidence constituted hearsay and its admission violated his Sixth Amendment right to confrontation. Because Barrett did not raise these claims below, they are subject to review only for plain error. We conclude that Barrett has fallen far short of establishing plain error in connection with this claim.

To begin with, he overlooks the fact that the Federal Rules of Evidence do not apply to the penalty phase of a federal capital trial. See 18 U.S.C. § 3593(c) (“Information is admissible [during the penalty phase] regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury”); United States v. Brown, 441 F.3d 1330, 1360-61 (11th Cir.2006); United States v. Johnson, 223 F.3d 665, 674 (7th Cir.2000).

Further, Barrett has failed to establish that these two items of challenged evidence were unfairly prejudicial, confused the issues, or misled the jury. Thus, it is clear that the district court did not violate the Federal Rules of Evidence in admitting the challenged testimony from Kelli Eales. As for Barrett’s Sixth Amendment claim, “[i]t is far from clear that the Confrontation Clause applies to a capital sentencing proceeding.” United States v.

Higgs, 353 F.3d 281, 324 (4th Cir.2003) (concluding that plain error did not occur as a result of admission of alleged hearsay evidence during penalty phase of federal death penalty trial); see United States v. Brown, 441 F.3d 1330, 1361 n. 12 (11th Cir.2006) (declining to determine whether Confrontation Clause applies to the penalty phase of a federal capital trial, and noting the lack of clarity on this issue).

Thus, “even if the introduction of [Eales’ testimony] during the sentencing proceeding was error,” it cannot be said “that the error was plain since it ... remains unclear whether the Confrontation Clause applies in this circumstance.” Higgs, 353 F.3d at 324. Moreover, even if the error were plain, Barrett has made no attempt to establish how the challenged evidence affected his substantial rights, or to demonstrate how the error seriously affected the fairness, integrity or public reputation of the judicial proceedings.

Barrett complains in passing that the following sentence from a note written by Eales’ daughter was not read to the jury, but nevertheless was briefly projected onto a screen for the jury to read: “I wish Kenneth Barrett could just gone to jail with my dad rather than shooting my dad because now he’s in jail and I don’t have my dad.” Although Barrett contemporaneously objected to this incident, the district court overruled the objection, concluding that “the likelihood of the [ ] [jury] having read it [wa]s remote.” ROA, Vol. 55, at 4685.

On appeal, Barrett makes no attempt to challenge the district court’s factual finding that it was unlikely that the jury read the sentence, does not identify what statutory or constitutional right, if any, was potentially implicated by this incident, and does not explain how he was prejudiced thereby. Accordingly, we conclude the district court did not abuse its discretion in overruling Barrett’s objection. See United States v. Nash, 482 F.3d 1209, 1217 (10th Cir.2007) (applying abuse of discretion standard of review to district court’s refusal to grant a motion for mistrial).

Lastly, Barrett challenges the admission of four photographs of the victim on the grounds that they were “emotional and highly prejudicial.” Aplt. Br. at 51. A review of the record oh appeal indicates that Barrett asserted no objection below to two of the four photographs, and thus our review of his appellate challenge to the admission of those photographs is only for plain error. Although Barrett asserted timely objections to the remaining two photographs, he did so on a basis other than the one now asserted on appeal.

Thus, we likewise apply plain error review to his appellate challenge to the admission of those photographs. Ultimately, we are not persuaded that the district court committed any error, let alone plain error, in admitting these four photographs. In particular, we conclude that the four photographs fell firmly within the scope of victim impact evidence as defined by the Supreme Court in Payne, and in no way rendered the sentencing phase of Barrett’s trial fundamentally unfair. Jp.

Juror misconduct On October 5, 2005, the sixth day of the first-stage proceedings, the district court informed the parties it had received a report from government counsel and the clerk of the court “that juror 85, during the lunch break, somewhere in the smoking area outside of the handicapped entrance area made contact with Billy Poe of the Oklahoma Highway Patrol.” ROA, Vol. 38 at 1265. More specifically, the district court noted it had been reported that Juror 85 “shook [Poe’s] hand and indicated as if he had known Mr.

Poe in the past,” even though “[t]he questionnaire that juror 85 filled out show[ed] no [such] indication.” Id. at 1265-66. The district court proceeded to conduct an in camera hearing during which it and defense counsel questioned Juror 85 about the incident. Juror 85 testified he had worked . with Poe’s mother many years before and thus knew Poe as a child, but had only seen Poe one time since Poe became an adult, with that incident occurring approximately fifteen to twenty years prior to the trial.

Juror 85 further testified that he did not recall Poe’s name being mentioned during voir dire, and did not know prior to the hearing that Poe was involved in the case. As for his contact with Poe, Juror 85 testified that he simply recognized Poe, said “Billy Poe,” and then shook Poe’s hand. Id. at 1269-70. Juror 85. testified that he did not discuss the case with Poe, and had not discussed with the other jurors his relationship with Poe. Finally, Juror 85 testified that there was nothing about his relationship with Poe that would keep him from being fair and impartial to both parties in the case.

At the conclusion of the hearing, the district court stated it was “satisfied” with “Juror 85’s explanation of the situation,” and thus rejected defense counsel’s request to remove Juror 85. Id. at 1273. Barrett complains on appeal that juror misconduct occurred during trial that resulted in the deprivation of his Fifth, Sixth, and Eighth Amendment rights. According to Barrett, the brief encounter between Juror 85 and Trooper Poe placed the impartiality of Juror 85 in doubt and should have resulted in the dismissal of Juror 85.

Further, Barrett suggests that this incident, together with another incident of alleged juror misconduct, placed into question whether “the jury selection process was ... carried out properly.” Aplt. Br. at 53. Ultimately, Barrett contends that the district court should have, but failed to, grant him a new trial as a result of the incident involving Juror 85.

Federal Rule of Criminal Procedure 24(c)(1) authorizes district courts to replace “any jurors who are unable to perform or who are disqualified from performing their duties.” “[T]he 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.” McVeigh, 153 F.3d at 1185. Thus, we apply an abuse of discretion standard to such decisions, giving “ ‘due deference to jurors’ declarations of impartiality and the trial court’s credibility determination that those declarations are sincere.’ ” United States v.

Black, 369 F.3d 1171, 1176 (10th Cir.2004) (quoting McVeigh, 153 F.3d at 1184). The Supreme Court has held that “[i]n a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial .... ” Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954). We have qualified this presumption of prejudice, however, by requiring a showing by the defendant that the communication or contact was “about the matter pending before the jury.” United States v.

Brooks, 161 F.3d 1240, 1246 (10th Cir. 1998) (internal quotation marks omitted). In addition, we have held that “[t]he defendant must ... demonstrate ‘that an unauthorized contact created actual juror bias; courts should not presume that a contact was prejudicial.’ ” United States v. Robertson, 473 F.3d 1289, 1294 (10th Cir.2007) '(quoting United States v.

Frost, 125 F.3d 346, 377 (6th Cir.1997)). “Otherwise, a Remmer hearing would be required ‘based on each of the multiple ordinary incidental contacts between non-sequestered jurors and virtually any other person during the course of a trial.’ ” Id. (quoting Brooks, 161 F.3d at 1246). Applying these principles to the facts presented here, we readily conclude that the district court did not abuse its discretion in refusing to discharge Juror 85.

As noted, Juror 85 testified that he simply greeted Poe by first saying his name and then shaking his hand, and that no discussion of any substance, let alone about the case against Barrett, occurred. Juror 85 further testified that his contact with Poe would not interfere with his ability to be fair and impartial. The district court expressly found Juror 85’s testimony credible, and Barrett has not seriously challenged, and indeed cannot successfully challenge, this determination.

In light of Juror 85’s testimony, it was thus proper for the district court to conclude that no actual bias existed on the part of Juror 85, and in turn to refuse to remove Juror 85 from the panel. 5. Batson challenge Barrett contends the government, by striking the last of only two African-Americans in the sixty-four person venire, failed to exercise its peremptory challenges in a race-neutral manner and thus violated the prohibition announced in Batson v.

Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), against “[purposeful racial discrimination in selection of the ve-nire .... ” For the reasons discussed below, we conclude that Barrett has failed to establish that the government violated Bat-son. During voir dire, the district court seated a panel of sixty-four prospective jurors. After the challenges for cause were completed, only two African-American jurors remained. The parties were then required to each exercise twenty-three peremptory challenges to reduce the total number of jurors to eighteen (twelve regular jurors and six alternates).

The government used its tenth peremptory challenge to remove one of the two African-American jurors, Juror 3. Later, the government exercised its twenty-second peremptory challenge to strike Juror 134, the second and remaining African-American juror. Barrett’s counsel objected at that point, citing Batson and arguing that it was necessary for the government to offer a race-neutral reason for striking Juror 134. Government counsel responded: Your Honor, first, this method of selection requires us to kick 23 people.

We are now into a grading system such that we have to kick people off that are acceptable to us otherwise. And I p[o]lled all four and we are down to a relative few at our table and we have all, in terms of our rating, indicated that this juror is the one that should go next. We only have one more strike after this one, Your Honor. Our assessment includes these features: The degree to which the juror was attentive, bold, decisive, intelligent, patient, sincere and honest. The more unlike the defendant, the better for us.

We also look, Your Honor, at how the juror reacted to us and to the defense during questioning, their probable attitude toward the government, whether they were bored, unhappy, or nervous. We look at dress and demeanor as an indicator of respect for the Court and jury service and, in a nutshell, we look for those we are likely to be receptive to our witnesses’s testimony, evidence and presentation.

And I am reminded, too, Your Honor, that the first African American juror that we struck slept through a portion — well, he accept [sic] certainly through the reading of.the indictment here, but slumbered through other portions of the Court’s instructions. Tr. at 154-55.

When asked by the district court if the government’s juror rating system was disclosable, government counsel responded: I think they are work product, but I will tell the Court that essentially what we did is that we each rated each of the prospective jurors based on their ques-tionaires [sic], their death penalty qualification, and then we amplified that somewhat by what happened today [during the voir dire process]. Id. at 161. Thereafter, the district court summarily overruled Barrett’s Batson objection and completed the voir dire process. Id. at 162.

The following morning, prior to the parties’ opening statements, government counsel briefly revisited the Batson issue and offered the following additional explanation for the government’s decision to strike Juror 134: If the Court please, I’d like to amplify one thing. There was a Batson chal-lénge, and one of the reasons we are reluctant sometimes, Your Honor, to more fully explicate our reasoning, is that jury selection had not yet then been complete. But I want to.state for the record that our selection process had narrowed that choice down to jurors numbers 44, 55, and 134.

In our contemplation and as rationale, Your Hon- or, we recalled first that with regard to the juror who was ultimately struck, that we had to repeatedly ask him to speak up, both at the individual voir dire [i.e., the death qualification process] and then at the general voir dire. I frankly feared that I had alienated him by asking him to speak up, and honestly did not hear a substantial' number of his responses with regard to our questioning.

Important to our decision, though, is that juror number 44 reflected that his cousin is a DEA chemist who is going to testify in this case, although he testified appropriately and responded appropriately that he would be able to fairly consider that statement, our conclusion was that he certainly would not be, at least at first blush, adverse to that testimony. Number 55, Your Honor, interacts with law enforcement officers in his security and surveillance job, and we note also that he is apparently Native American, at least he works for a Native American casino.

In our decision, also, we elected to keep number 24, despite his reported illness. I just wanted to state that as amplification for the previous justification. We accepted the Court’s ruling and believed it well-founded at the time, and still do. Id. at 175-76. Batson challenges are analyzed by trial courts under the three-step, “burden-shifting framework recently clarified by the Supreme Court in Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005).” United States v.

Nelson, 450 F.3d 1201, 1207 (10th Cir.2006). “Under this framework, the party challenging a peremptory strike of a prospective juror must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Id. (internal quotation marks omitted). If the defendant succeeds in making out a prima facie case, “the ‘burden shifts to the [government] to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes.” Johnson, 545 U.S. at 168, 125 S.Ct. 2410 (quoting Batson, 476 U.S. at 94, 106 S.Ct. 1712).

Finally, if the government tenders a race-neutral explanation, “ ‘the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination.’ ” Id. (quoting Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam)). In United States v.

Johnson, 941 F.2d 1102, 1108 (10th Cir.1991), we stated that “the first issue of whether a prima facie case of discrimination exists becomes moot whenever the prosecutor offers a race-neutral explanation for his peremptory challenges and the trial court rules on the ultimate factual issue of whether the prosecutor intentionally discriminated.” Because the district court in this case proceeded, albeit summarily, through each of the three steps of the Batson framework, we will, consistent with our decision in Johnson, focus solely on the last two steps of that framework.

Turning first to the government’s proffered reasons for striking the two African-American jurors, we review de novo whether those explanations were race neutral. Nelson, 450 F.3d at 1207. A race-neutral explanation is simply any explanation, no matter how implausible, that is “based on something other than the race of the juror.” Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The proffered reason need not be “persuasive, or even plausible,” so long as it is facially valid. Purkett, 514 U.S. at 768,115 S.Ct. 1769.

We readily conclude that the government offered race-neutral reasons for striking both Juror 134 (the second African-American juror), as well as Juror 3 (the first African-American juror); In particular, the government indicated that it had, taking into account juror attentiveness, decisiveness, intelligence, patience, honesty, and other non-race-based factors, developed a system pursuant to which it rated each of the sixty-four prospective ju

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