UNITED STATES of America, Plaintiff-Appellee, v. Meier Jason BROWN, Defendant-Appellant, 441 F.3d 1330

MARCUS, Circuit Judge: In this capital case, Meier Jason Brown appeals his conviction and death sentence imposed by the United States District Court for the Southern District of Georgia. A jury found him guilty of 1) murder within the territorial jurisdiction of the United States, in violation of 18 U.S.C. § 1111; 2) murder of a federal employee (a postal worker), in violation of 18 U.S.C. § 1114; and 3) robbery of federal property ($1175 in postal money orders), in violation of 18 U.S.C. § 2114.

The jury recommended that Brown should be sentenced to die for the murder convictions; and the district judge imposed a death sentence, along with 300 months in prison for the robbery. Brown timely appealed, arguing that the district court made evidentiary and constitutional errors, inappropriately conducted voir dire, and violated both Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After thorough review, we affirm. I.

The facts of this tragic case are straightforward and are taken from the testimony of the trial witnesses and from the last of Brown’s three confessions, which was recorded and presented to the jury by audiotape. The victim, Sallie Gaglia, was a part-time postmistress in the small town of Fleming, Georgia. She was working in the Fleming Post Office on the morning of November 30, 2002, when she was stabbed to death. One of her co-workers, Darlene Marie Washington, was working in- the Post Office with Gaglia between 8:00 a.m. and about 9:30 or 9:45 a.m. that day.

During that time, a black male came into the Post Office to retrieve mail from box 327, which Washington knew belonged to the Morgan and Brown families. According to Washington, Gaglia asked the man his name, and he gave three replies that neither woman could understand, although Washington believes he uttered a name that began with the letter “M.” As he was exiting the Post Office, Washington heard the man say his name was “Jason.” Washington did not get a good look at him and could offer nothing more in the way of a description than his sex and skin color.

Washington left the Post Office before Gaglia was killed. Jennifer Zech and Stephen Nichols discovered Gaglia’s body when they stopped in the Post Office to get their mail sometime around 10:45 a.m. on November 30th. When they found her, Gaglia was lying on the floor behind the customer counter in the Post Office with what appeared to be a blood stain on her back. Gaglia did not respond to Nichols’ shouts, so he jumped through the customer service window and again tried to elicit a response. Nichols opened the door leading into the customer waiting area so medical responders would have access to the victim.

While Nichols was in the Post Office, Zech ran to a nearby house and asked the owners to call 911. Linda Ashcraft, a volunteer firefighter who lived nearby, testified that a man came to her house and told her that someone at the Post Office needed help. Ashcraft and her husband, who was also a first responder and firefighter, responded to the Post Office and performed CPR on Gaglia. When they found Gaglia, she was lying face down with “a lot” of visible blood. Ashcraft noticed two holes in the back of Gaglia’s sweater and knife wounds in Gaglia’s back.

EMS personnel arrived shortly thereafter and declared Gaglia dead. Although there were no actual eyewitnesses to the stabbing, several people testified to seeing a person fitting Brown’s description at the Post Office around the time the crime occurred. Among others, Frank Kania said that he stopped by the Post Office to pick up his mail around 10:25 or 10:30 a.m., had a brief conversation with Gaglia, and returned to his truck, where he sat for one or two minutes while he looked through his mail.

Kania said that while he was sitting in his truck, he noticed a black male on a bicycle riding toward the Post Office. The bicyclist wore a hooded sweatshirt. Kania drove off before the suspect arrived at the Post Office, but as he was driving away, he observed through his rear-view mirror that the black male got off his bike and walked into the Post Office. Several days later, Kania selected Brown from a photo line-up given to him by investigators, noting that Brown had “the closest resemblance” to the man he saw on the bike.

Chris Bowen testified that he too drove by the Fleming Post Office around 10:30 or 10:35 a.m. on November 30th. He saw a slender black male, approximately 5’10” to 6’ tall, dressed in a dark, hooded jogging suit, sitting on a bicycle in front of the Post Office door. The man caught Bowen’s eye because he was wearing white gloves on a day that was not “all that cold.” Bowen, who was driving about ten miles per hour, made eye contact with the suspect, but did not stop at the Post Office.

Like Kania, Bowen later selected Brown from a photo line-up, noting that although he was not one hundred percent sure, he thought Brown was the man he saw at the Post Office that fateful morning. Postal inspectors performed an accountability study at the Fleming Post Office the day Gaglia was murdered. They determined that $1,266.59 in cash was missing from the till and that four money orders had been issued in the amounts of $20, $500, $500, and $175. The cash drawer contained approximately $103.91.

At trial, the government introduced numerous crime-scene photographs depicting the location and position of Gaglia’s body and blood stains found in the Post Office. The government also offered a receipt tape recovered from the Post Office calculator showing the numbers 500, plus .90, plus 500, plus .90, and then the number 175 with a division sign. A postal employee explained that the cost of purchasing money orders up to $500 was $.90, thus suggesting that someone in the Post Office calculated the amount due for the purchase of three money orders with denominations of $500, $500, and $175.

Moreover, the government introduced the picture of a shoe print recovered from the top of the customer service counter that separated the public portion of the Post Office from the employee work area where Gaglia’s body was found. No fingerprints were found in the Post Office. The Deputy Chief Medical Examiner for the Georgia Bureau of Investigation performed an autopsy on Gaglia. He testified that the victim had been stabbed ten times, two of which could have caused Gaglia to die within a short period of time.

The doctor further noted that two of the non-fatal wounds were to the victim’s extremities: a half-inch laceration on the anterior surface of her left forearm and a three-quarter inch stab wound on the back of her left wrist. He explained that when an individual receives multiple stab wounds, cuts found on the extremities are classically described as “defensive” types of injuries. On December 5, 2002, police conducted simultaneous searches at the homes of Sadie Brown (Brown’s mother) and Diane Brown.

Although armed with search warrants issued by a magistrate, the officers received consent to search from both Sadie and Diane. At Sadie’s house, police recovered a brown “cargo or field type” jacket and the bike that Brown allegedly used to transport himself to and from the Post Office. Notably, the police found blood stains on the jacket, and a DNA analyst testified that the DNA profile of those samples matched the DNA profile of Sallie Gaglia’s blood.

He further stated that the probability of randomly selecting an unrelated individual with the same DNA profile is one in 25 quadrillion from the Caucasian population and one in 100 quadrillion from the African-American population, leading him to conclude that “within a reasonable degree of scientific certainty, Sallie Gagila [sic] is the source of the major component profile obtained from the ... jacket.” Dietrechusn Davis, the defendant’s cousin, testified that on the morning of November 30, he remembered seeing Brown wearing the brown jacket investigators later recovered from Sadie’s house.

At Diane’s house, the police found a pair of Lugz sneakers with a tread that, according to a forensic scientist who testified at trial, “was similar in size and geometry” to the tread design of the shoe print left at the crime scene in the Post Office. Additionally, the police found three money order receipts at Diane’s house, one in the amount of $500 made payable to Chase Manhattan Mortgage, one in the amount of $423.08 made payable to Chase Manhattan, and one in the amount of $175 made payable to Diane’s bankruptcy trustee.

Dietrechusn Davis also testified that he was in Sadie’s home on the night of December 5, 2002, when Sadie received a phone call. Davis, who heard only Sadie’s portion of the conversation, heard her say “Meier, where you at? Meier, you didn’t kill that lady, no.” At that time, Sadie started crying, and Davis left the room. The defendant Meier Jason Brown was present at Diane’s house when investigators conducted the search on December 5, 2002.

He talked with officers while they were in the house and proceeded to confess three separate times to the murder of Sallie Gaglia: once in the house before he was given Miranda warnings and arrested, once in the house after he was given Miranda warnings and arrested, and once the following morning at the Liberty County Jail. Only the jail confession was recorded, and it was played in its entirety for the jury at trial.

Postal Inspector James Rushwin spoke with Brown at Sadie’s house on December 5, explaining to Brown that investigators were speaking with everyone who may have been at the Post Office on November 30, 2002. He asked if Brown would be willing to talk to the police. Brown said he would, and the interview was conducted by Rushwin and Detective Charles Woo-dall from the Liberty County Sheriffs Department. Brown told investigators that he was at the Fleming Post Office on the morning of November 30, 2002, around 8:30 a.m., to retrieve his family’s mail from their post office box.

He said he rode his Uncle Junior’s bike to and from the Post Office and had a brief conversation with Sallie Gaglia after she asked him his name. After leaving the Post Office, Brown said he stopped at Annie Jo Scott’s house and visited with her for several minutes before returning to his mother’s home to distribute the -mail. Brown initially denied returning to the Post Office at any time on November 30th.

Later in the same conversation, Brown changed his story, this time telling the police that after distributing the mail to his family, he stole $1300 from a stash that his cousin Cedric had buried in the woods behind Sadie’s house. He claims to have returned to the Post Office and used the stolen money to purchase three money orders: two for $500 each and one for $175. Brown said he needed the money orders so that Diane Brown could pay her mortgage and her bankruptcy trustee. In yet a third version of the story, Brown admitted returning to the Post Office with a knife to rob Gaglia.

He said he rode his bicycle to the Post Office and ordered three money orders in the denominations noted above. He claimed that when Gaglia turned away from the counter to calculate the amount due, he jumped over the counter, tripped, and fell into her, thereby cutting her with his knife. He told the investigators that at that point he decided he had to kill her because she knew him. Brown said he took Gaglia’s wallet from her purse, crawled through the counter window, got back on his bike, and rode home.

He discarded the knife and the socks he wore on his hands somewhere between the Post Office and his mother’s house and said he buried the wallet in his backyard, although neither the wallet nor the knife and socks were ever located. Brown also said that after returning home, he washed his clothes and called Diane to pick him up. She arrived approximately one hour later. Brown explained that he gave the money orders to Diane the next day. After giving this confession to the police, Brown picked up the phone, dialed, and someone answered.

Rushwin testified that “[Brown] said, ‘bitch, just give the phone to Mom.’ And then he said, ‘Mom,’ he says, ‘I love you.’ He said, ‘it was an accident.’ He said, ‘don’t hate me, Mama.’ He said it was an accident. And he said ‘bye, Mama, bye.’ And hung up.” Shortly thereafter, Brown was arrested and advised of his Miranda rights. He waived those rights and repeated the entire confession to the officers. Diane subsequently came into the room, and Brown told her that he went to the Post Office to rob Gaglia and that he fell into her and cut her.

Brown was transported to the Liberty County Jail on the night of December 5, 2002. The next morning, again after being given his Miranda warnings, Brown gave an audio-taped confession to Detective Woodall and Postal Inspector Henry Reeves. Brown stated on the tape that he had been advised of his rights and he was waiving those rights and talking to the police. Brown reiterated many of the facts he had told the police the previous day. He confirmed that he rode a bicycle to the Post Office on the morning of November 30 to retrieve his family’s mail and had a brief conversation with one of the postal workers.

He returned to his mother’s house and then went back to the Post Office to rob Gaglia. On the way, he stopped to see Ms. Annie Jo Scott, who gave him some canned goods for his mother. From there, Brown proceeded to the Post Office. Brown stated: I went inside, and I asked the lady for the money orders. She made them. Uh, I jumped across the little thing, and I tripped, and accidentally cut her. And when I cut her, I got scared as hell, man. I didn’t go there to hurt her, honest to God I didn’t.

Brown stated that he brought the knife with him solely to “intimidate” Gaglia and that he placed socks over his hands prior to jumping across the counter. Brown said that he took the money orders and Gaglia’s wallet, jumped back through the counter window, and returned to his mother’s house, discarding the knife and socks along the way. After returning home, he put his clothes in the wash and called Diane to pick him up.

Despite several questions from the investigators, Brown was unable to remember (or relate) any specific details about what happened between when he first cut Gaglia and when he rode his bike back to his mother’s house. Detective Woodall asked “So, after you accidently cut her, what was the next thing you remember happening?” Brown responded, “Honestly, me throwing that knife.” Brown said he was surprised to learn that Gaglia had been cut more than three times, and he stated that she never said anything during the incident or attempted to put up a fight.

Diane Brown testified at trial and supplied some details about what she and Brown did after he committed the robbery and murder. Diane testified that Brown called her on the morning of November 30 and asked her to pick him up at his mother’s house, the two having already discussed their plans to spend the day together. She picked him up and then drove to her house near Savannah, and, while they were stopped to buy some cigarettes and alcohol, Brown showed her three money orders, which he said would be enough to pay her mortgage and her bankruptcy trustee.

Two of the money orders were for $500, and one was for $175. Diane said that at the time she needed $927 to pay her mortgage and $175 to pay her bankruptcy trustee. She did not ask Brown where he got the money orders, and he did not volunteer that information. Diane and Brown went to a bank in Fleming on the following Monday, December 2, 2002. She cashed one of the $500 money orders. Later that day, Diane used the proceeds to purchase another money order for $423.08, which, when combined with the remaining $500 money order, was sufficient to cover her mortgage payment.

The three money orders Brown showed Diane were introduced at trial. A postal inspector testified that the serial numbers on the three money orders matched the serial numbers of the three money orders stolen from the Post Office. The government also introduced the $423.08 money order made out to Chase Manhattan. The jury convicted Brown on all three counts. The district court then proceeded to the penalty phase of the trial, which was conducted before the same jury that heard the guilt phase. The government called six witnesses.

Irwin Frazier, Brown’s former parole officer, testified that Brown had previously been convicted of driving under the influence (twice), forgery (twice), driving with a suspended license, robbery, theft by taking, and financial transaction card fraud. Frazier said that Brown had been on parole in 2001, but that it had been revoked and Brown was returned to prison because he had been charged with fraud. Randy Graham, a former Liberty County Detective, testified that Brown had admitted to committing a robbery at a Liberty County convenience store in March of 1996.

He stated that when detectives initially confronted Brown with evidence of the robbery, Brown denied any involvement and only admitted his role after being shown even more evidence confirming his presence during the crime. Darlene Washington, one of Gaglia’s coworkers, testified that Gaglia was a sweet person who always helped people in any way she could. Catherine Webb, Gaglia’s sister, testified that the murder had been extremely difficult for Gaglia’s husband, Joe, and her two sons, Scott and Craig.

She said that Craig had planned to attend college, but decided to forgo his plans because of the emotional strain caused by his mother’s death. Betty Cox, another of Gaglia’s siblings, testified about the things she used to do with Gaglia and how she missed her sister. Finally, David Clark, Gaglia’s brother, testified that Gaglia enjoyed her job at the Post Office because it allowed her to meet and help people. He added that she was generous and kind and she would be missed by her family. The defense presented fourteen mitigation witnesses.

Brown’s father, Pelham Brown, had left the home when Brown was seven years old, after shooting Brown’s older brother. Alexis Andrews, a retired Liberty County Assistant Jail Administrator and a neighbor of Brown’s, testified that Brown grew up in a household plagued by fighting, drinking, drugs, and stabbings. She also said that she got to know Brown when he was in prison and that he was a very good inmate who never had disciplinary problems. She recounted that he was selected to be a prison trustee, a position reserved for clean inmates with good manners. She indicated that Brown was active in the jail church.

Beverly Bonaparte, Brown’s sister, testified that Brown was hard-working and that he eared for his mother, who was in poor health before she died. Joseph Bonaparte, Brown’s brother-in-law, said that Brown was a likeable person who cared deeply for his mother. John T. Wilcher, the Assistant Jail Administrator for Chat-ham County, testified that Brown had been an inmate on several occasions and that he had never caused any disciplinary problems in jail. Linda Jones, one of Brown’s former teachers, described Brown as well-mannered and polite. She indicated that his parents showed no interest in his education.

Vanessa Montgomery Parker, Brown’s former school social worker, also described Brown as well-mannered. Patricia Morgan, Brown’s sister-in-law, described Brown as a sweet, caring man who loved his mother. Steve Murray, Brown’s former employer, said Jason was a dependable worker who was nice to customers. Davis Williams, who attended church with the Brown family, observed that Brown was well-mannered and that he helped his mother attend church through her declining health. Pastor B.T. Smith testified that the Browns were God-fearing people and urged the jury to spare Brown’s life.

Jimmy Wainwright, another of Brown’s former employers, added that Brown was dependable, hard-working, and honest. Wainwright also stated that Brown’s home was marred by fighting, shootings, stabbings, and drug use. Dexter Morgan, Brown’s brother, said that Brown was a loving person and urged the jury to show him mercy. Finally, Detective Woodall testified on Brown’s behalf. He noted the poor conditions under which Brown was raised. Moreover, Detective Woodall stated that he believed Brown was remorseful during his confession. The jury unanimously recommended that Brown be sentenced to die.

The district court imposed a death sentence, along with 300 months imprisonment for the robbery. Brown’s appeal was timely filed, and we now consider each of his arguments in turn. II. A. Miranda First, Brown claims that the district court improperly refused to suppress the pre-arrest confession that he gave at Diane’s house on December 5, 2002. He says that the initial confession was obtained unconstitutionally and that it tainted the two subsequent confessions; therefore they should have been suppressed pursuant to the Supreme Court’s decision in Missouri v.

Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). The magistrate judge conducted an evidentiary hearing on Brown’s motion to suppress and issued a Report and Recommendation (R&

R) in which he recommended denying the requested relief. The district court adopted the R&R. In reviewing a motion to suppress, findings of fact will be upheld unless clearly erroneous, but the application of the law to those facts is reviewed de novo. United States v. Muegge, 225 F.3d 1267, 1269 (11th Cir.2000). At the suppression hearing, the government called four police officers; the defense called Brown.

The first officer, Postal Inspector James Rushwin, testified that seven officers arrived at Diane’s home on December 5, 2002, armed with a search warrant, and received her consent to search her house and car for items connected to the Fleming Post Office murder. Rushwin said that the officers approached the house without their weapons drawn, knocked on the door, and identified themselves as police officers when Brown let them in.

Rushwin spoke privately with Diane in an adjoining room, told her the officers were investigating the murder of Sallie Gaglia, and asked her if she would allow them to search her house and car. She indicated that she was a corrections officer and would cooperate with the police. Rushwin produced a consent-to-search form for both the house and the car and explained them to Diane. She signed both forms, after which Rushwin performed an initial walk-through of the house. During the walk-through, he noticed two pairs of sneakers, one of which had a tread similar to the shoe print found at the crime scene.

Rushwin testified in these words regarding his initial encounter with Brown: Q. [Assistant United States Attorney]: And you talked to Mr. Brown about having a conversation with him at that time? A. [Inspector Rushwin]: Yes, I did. I said — I asked him' — I told him that we were talking with everyone that may have been [in] the Post Office on Saturday, the day of the murder, and asked if he would talk with us. Q.: What did he tell you at that time? A.: And he said he would. Q.: Did you advise him of anything with regard to his custodial status? A.: Yes, I did. Q.: What did you tell him?

A.: I advised him that he was not in custody. He wasn’t under arrest, and that he was free to go at any time. Q.: What [was] his response to that? A.: He said, “I’ll talk to you.” Rushwin told Brown that he wanted Liberty County Police Detective Chuck Woodall to sit in on the discussion and asked Brown if he would mind going to the police department for the interview. Brown responded that he would be willing to go to the station, but that he needed to put on a pair of shoes.

Rushwin then told Brown he would accompany him into the other room to retrieve Brown’s shoes, explaining that he was going with Brown “for my safety and yours, for safety reasons.” When Brown attempted to put on the sneakers with the suspicious tread, Rushwin informed him that the police would be taking them as evidence and that Brown could not wear them. Brown indicated he had no other shoes, that the additional pair of sneakers was not his, and that he did not want to go outside barefoot. Rushwin then asked Brown if he would be willing to talk at the house, and Brown said he would.

The two decided to wait for Detective Woodall to arrive before they began talking, and Rushwin described the situation in these terms: Well, we sat down at the dining room table. And I again informed Jason that he wasn’t under arrest, not in custody, and he was free to go at any time. I again explained that we were talking to people that may have been at the Post Office on Saturday. And he said he understood. While they waited, Brown “sat around and smoked, and did whatever he wanted to do.” Once Detective Woodall arrived, Brown and the two officers sat at the dining room table.

They advised Brown, for the third time, he was not under arrest and was free to leave: Q. [Assistant United States Attorney]: Did you again ask for Mr. Brown’s consent to speak? A. [Inspector Rushwin]: Yes. He again was advised by both Detective Woo-dall and I that he wasn’t under arrest, in custody and, you know, he was free to leave at any time. He said he understood Detective Woo-dall And I said that we’re trying to talk to everyone that may have been at the Post Office.

And he said, “yeah, I know.” Inspector Rushwin’s account is corroborated by Detective Woodall, who testified that I told [Brown] initially he was not under arrest. I told him numerous times that — I mean, that he was free to leave. Several times he asked about getting things. And we talked about — I told him specifically he could do anything he wants. We were in his house with his consent and the consent of the young lady. During the ensuing conversation, Brown confessed to the murder and robbery at the Post Office, as detailed above.

At one point during the interview, it appeared to the officers that Brown was distracted by Diane and the other investigators who were walking in and out of the kitchen, so they asked him if he would be more comfortable in the sitting room. Brown said that he would, and he got a can of soda and a cigarette as he moved to the other room. Detective Woodall testified that although some of the investigators conducting the search of Diane’s home were armed, the officers who interviewed Brown did not have weapons.

Investigator Rush-win stated that there was an officer in the front yard, of Diane’s house armed with a shotgun when police originally entered the house, but that the weapon was returned to the police car shortly thereafter. Investigator Herbert Dewayne Martin testified that he stayed with Brown after the officers originally entered the house. Martin said that he asked Brown to sit in a chair for about fifteen minutes while Rush-win was obtaining consent to search from Diane.

As a safety precaution, Martin told Brown to let him know before he made any sudden movements, such as getting up from the chair or reaching into his pockets. Martin also testified that he later participated in the interview, for approximately thirty minutes or an hour, during which time he told Brown that some of the officers did not believe parts of his story. Brown testified at the suppression hearing and gave a sharply different account. He said that police entered the house with guns drawn, grabbed Diane by the arm, and ordered him to sit in a chair.

Brown asserted that he was not free to move about the house and, notably, was never told that he was free to leave. Brown said “I wanted to leave when they first came. They never indicated that I could leave, you know.

One officer even stated, the guy that was standing at the door, he stated if I get up that was going to be the worse [sic] mistake I could possibly make.” Brown contends the officers coerced him into confessing by telling him they had Diane in handcuffs and were going to “lock her up, and take her child.” The magistrate judge made two critical factual findings: first, that Brown was repeatedly told he was not under arrest and was free to leave at any time; and, second, that Brown understood he was not under arrest and was free to leave at any time.

Specifically, the magistrate judge found that Inspector Rushwin “advised defendant [when he first spoke with him] that he was not under arrest and that he was free to go at any time. In response, defendant said, ‘I’ll talk to you.’ ” Moreover, the magistrate judge found that while Rushwin and Brown were waiting for Detective Woodall to arrive, Inspector Rushwin again told defendant that he was not under arrest, was not in custody, and was free to go at any time.

When Detective Woodall arrived, he and Inspector Rushwin explained to defendant before they began the interview that he was not under arrest and was free to leave at any time. Defendant said he understood. Additionally, the magistrate judge, plainly rejecting Brown’s account, found that the officers conducting the interview were not armed, that Brown voluntarily moved around the house, and that he was never ordered to stay in any particular location.

Based on those factual findings, the magistrate judge concluded that Brown was not in custody at the time he spoke with the officers and, therefore, was not entitled to be given Miranda warnings: Inspector Rushwin and Detective Woo-dall testified that they reiterated to defendant multiple times that he was not in custody, was not under arrest, and was free to leave at any time or do anything he wanted. Defendant clearly understood this explanation, as demonstrated by both his words and actions.

He indicated to Inspector Rushwin that he understood and was willing to talk with the officers, and Inspector Rushwin testified that defendant got up, moved around, got a drink, and picked up the phone to call his mother without requesting the officers’ permission. We are bound by a trial court’s findings of fact unless they are clearly erroneous. See Muegge, 225 F.3d at 1269. The record amply supports the findings that Brown was repeatedly told he was not under arrest and was free to leave and that he understood that warning, indeed that he expressly said he understood those words.

Although Brown’s account was sharply different, the magistrate judge, who observed the witnesses, was free to believe those he found trustworthy and discredit the testimony of those who were not. See United States v. Brown, 415 F.3d 1257, 1267 (11th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 1570, — L.Ed.2d-, No. 05-8065 (March 20, 2006) (noting that “[t]he credibility of a witness is in the province of the factfinder, and we will not ordinarily review the factfinder’s determination of credibility” (quotation marks and citation omitted)).

The district court’s factual findings were not clearly erroneous and will not be disturbed on appeal. It is by now undisputed that the right to Miranda warnings attaches when custodial interrogation begins. United States v. Acosta, 363 F.3d 1141, 1148 (11th Cir.2004). A defendant is in custody for the purposes of Miranda when there has been a “formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (quotation marks omitted); see also United States v.

McDowell, 250 F.3d 1354, 1362 (11th Cir.2001). Whether Brown was in custody prior to his formal arrest “depends on whether under the totality of the circumstances, a reasonable man in his position would feel a restraint on his freedom of movement to such extent that he would not feel free to leave.” McDowell, 250 F.3d at 1362 (quotation marks and alterations omitted). “The test is objective: the actual, subjective beliefs of the defendant and the interviewing officer on whether the defendant was free to leave are irrelevant.” United States v.

Moya, 74 F.3d 1117, 1119 (11th Cir.1996). “[Ujnder the objective standard, the reasonable person from whose perspective ‘custody’ is defined is a reasonable innocent person.” Id. (emphasis added). After reviewing the totality of the circumstances, we conclude that Brown was not in custody when he gave his initial confession to the police. First, and most important, he was told no less than three times by two different officers that he was not under arrest, not in custody, and was free to go at any time.

As we recently held in Muegge, the fact that an individual is told he is not under arrest and is free to leave is a fact of substantial importance in determining whether a reasonable person would have felt free to leave. In Muegge, we made the point this way: [i]f the individual being questioned were innocent, and was told directly he might leave, in the absence of evidence to the contrary the interrogation was non-custodial as a matter of law.

There may be situations where the restraints placed on a suspect’s freedom are so extensive that telling the suspect he was free to leave could not cure the custodial aspect of the interview, but that is not the case here. 225 F.3d at 1271. Unambiguously advising a defendant that he is free to leave and is not in custody is a powerful factor in the mix, and generally will lead to the conclusion that the defendant is not in custody absent a finding of restraints that are “so extensive that telling the suspect he was free to leave could not cure the custodial aspect of the interview.” Id.

We are not alone in recognizing the importance of a police officer’s admonition that a person is free to leave. The Eighth Circuit noted that “abundant advice of freedom to terminate the encounter should not be treated merely as one equal factor in a multi-factor balancing test” and concluded: That a person is told repeatedly that he is free to terminate an interview is powerful evidence that a reasonable person would have understood that he was free to terminate the interview.

So powerful, indeed, that no governing precedent of the Supreme Court or this court, or any case from another court of appeals that can be located (save one decision of the Ninth Circuit decided under an outmoded standard of review, United States v. Lee, 699 F.2d 466, 467-68 (9th Cir.1982) (per curiam)), holds that a person was in custody after being clearly advised of his freedom to leave or terminate questioning. United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004). See also United States v.

Salvo, 133 F.3d 943, 951 (6th Cir.1998) (noting that a statement from officers that a suspect is not in custody and free to leave is an “important factor” in determining that the suspect is not in custody); United States v. Collins, 972 F.2d 1385, 1405 (5th Cir.1992) (finding defendants were not in custody where they were “told explicitly and repeatedly that they were not under arrest and were free to leave”); United States v.

Griffin, 922 F.2d 1343, 1349 (8th Cir.1990) (noting that “[t]he most obvious and effective means of demonstrating that a suspect has not been taken into custody ... is for the police to inform the suspect that an arrest is not being made and that the suspect may terminate the interview at will” (quotation marks omitted)). The additional finding of fact that Brown said he understood the officers’ advice that he was not under arrest and was free to leave strengthens the force of the instructions. See, e.g., United States v.

Brave Heart, 397 F.3d 1035, 1039 (8th Cir.2005) (noting that “we think that it is highly significant that [the officer] informed [the defendant] at the outset of the interview that [the defendant’s] presence was voluntary — information that [the defendant] actually understood, given his statements on the audio tape”). These facts weigh heavily in favor of a finding that Brown was not in custody. Second, it is significant that the interview took place in Diane’s home, a place where Brown often resided.

Although the location of the interview is surely not dispositive in determining whether the interviewee was in custody, “ ‘[c]ourts are much less likely to find the circumstances custodial when the interrogation occurs in familiar or at least neutral surroundings,’ such as the suspect’s home.” United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir.1994) (quoting 1 W. LaFave, Criminal Procedure § 6.6(e), at 496 (1984 & 1991 Supp.)); see also United States v.

Newton, 369 F.3d 659, 675 (2d Cir.2004) (noting that “absent an arrest, interrogation in the familiar surroundings of one’s own home is generally not deemed custodial”); United States v. Lanni, 951 F.2d 440, 442 (1st Cir.1991) (stating that a court should consider whether the suspect was questioned in “familiar or at least neutral surroundings” (quotation marks omitted)); United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir.1985) (finding it relevant in determining that defendant was not in custody that the questioning occurred in the defendant’s home, “on his own turf’ (quotation marks omitted)).

Brown undeniably was in a familiar setting when the interview occurred; indeed, the discussions took place in Diane Brown’s dining and living rooms. Although an officer accompanied him throughout the house for safety reasons, he was free to eat, smoke, use the phone, and move about as he wished. The fact that Brown was in a familiar setting also weighs in favor of a non-custodial finding. No particular fact in the “custody” analysis is outcome determinative — we simply weigh the totality of the circumstances.

Thus, even having been told by the officers that he was not in custody and was free to leave does not inexorably lead to the conclusion that Brown was not in custody. But, as we held in Muegge, Brown needs to establish “extensive” restraints in order to overcome a finding that under these circumstances a reasonable person would have understood he was free to leave or terminate the interview at any time. He has failed to do so. The only piece of evidence that weighs in favor of finding that Brown was in custody is the fact that the police confiscated his shoes.

On this record, however, that lone circumstance falls far short of evidence of “extensive” restraints. While Brown was not free to wear his sneakers, he did have other options (albeit imperfect ones) for leaving the house. He could have gone outside barefoot, he could have worn the other pair of sneakers that belonged to someone else, he could have walked the short distance to Diane’s car, or he could have called a friend for a ride. Although he was plainly and repeatedly told he was free to go, he never tried any of those options; indeed, he never even told anyone he wanted to leave.

Moreover, Brown never exercised the most basic method at his disposal for avoiding discussions with police — simply not talking to them. Despite what he was told, he voluntarily remained in the house and chose to speak with the police. The fact that police confiscated his shoes, standing alone, cannot convert what is a non-custodial situation into a custodial arrest when:

(1) Brown was repeatedly told he was not under arrest and was free to leave; (2) he said he understood this; (3) he was in the familiar and comfortable surroundings of his girlfriend’s home; (4) the interviewing officers were not armed; (5) he was never handcuffed or otherwise physically restrained; (6) he was free to use the phone (which he did); (7) he was free to move about the house (which he did); and, finally (8) no other indicia of coercion is cited by the factfinder.

Accordingly, we conclude that Brown was not in custody when he first confessed to robbing and murdering Gaglia, he was not entitled to Miranda warnings, and the statements need not be suppressed. Moreover, because Brown’s Seibert arguments, which are related to the second and third confessions, are wholly dependent upon the suppression of the first, we conclude that all of the statements were legally obtained. B. Hearing On Identification Evidence Before trial, Brown moved to suppress all out-of-court identifications. In that motion, he urged the district court to hold an evidentiary hearing.

The trial court refused to suppress the identifications and declined to conduct an evidentiary hearing because Brown failed to present any evidence that the methods used by the investigators were unduly suggestive or coercive. The magistrate judge expressly said that if, after viewing the photo-lineup, Brown had any evidence supporting the notion that the government had employed suggestive techniques, he would hold an evidentiary hearing at that time. Brown never made such a showing, and no hearing was held. We review the denial of an evidentiary hearing for abuse of discretion. United States v.

Gay, 251 F.3d 950, 951 (11th Cir.2001). Generally, we employ a two-part test for determining whether an out-of-court identification was properly admitted. First, we ask whether the original identification procedure was unduly suggestive. If we conclude that it was, we then consider whether, under the totality of the circumstances, “the identification was nonetheless reliable.” United States v. Diaz, 248 F.3d 1065, 1102 (11th Cir.2001). The Constitution does not impose a per se rule requiring an evidentiary hearing in every ease. Watkins v.

Sowders, 449 U.S. 341, 349, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981); United States v. Smith, 546 F.2d 1275, 1279-80 (5th Cir.1977) (holding that “[a]n evidentiary hearing is not required where none of the critical facts are in dispute and the facts as alleged by the defendant if true would not justify the relief requested” (quotation marks omitted)). Here, Brown made no argument and presented no evidence suggesting that the techniques used by the police were “unduly suggestive.” Under these circumstances the district court did not abuse its discretion in declining to hold an evidentiary hearing. See United States v.

Cooper, 203 F.3d 1279, 1285 (11th Cir.2000) (no abuse of discretion in denying motion for an evidentiary hearing where underlying motion to suppress was “wholly lacking in sufficient factual allegations”). Moreover, as the government correctly observes, any error arising from purportedly improper identification evidence would be subject to harmless error analysis. United States v. Beale, 921 F.2d 1412, 1433-34 (11th Cir.1991). At trial, two witnesses testified that they saw Brown at the Post Office and selected him from a photo lineup.

Those witnesses were effectively cross-examined regarding their identifications, one telling the jury that Brown was “the closest resemblance” to the man he saw at the Post Office and the other stating that although he was not one hundred percent sure, he thought Brown was the person he observed.

Given the overwhelming evidence of Brown’s guilt, including Brown’s confession, the recovered money orders, and the DNA samples of the victim’s blood found on his jacket, any conceivable errors related to the two identifications were harmless because “there is no reasonable probability that the evidence complained of might have contributed to the conviction.” See id. at 1433 (quotation marks omitted) (finding any purported identification errors harmless where the government introduced “overwhelming” evidence of the defendants’ guilt). C.

Brady Brown also argues, upon information and belief, that the government withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that Gaglia’s husband was opposed to the imposition of the death penalty. Normally, we review the denial of a motion for a new trial based on an alleged Brady error for abuse of discretion. United States v. Fernandez, 136 F.3d 1434, 1438 (11th Cir.1998). However, if the Brady claim is not precisely articulated to the district court, we only review it for plain error. United States v. Bend er, 290 F.3d 1279, 1284 (11th Cir.2002).

In this case, there is no indication that the Brady claim was ever presented to the district court. In Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the Supreme Court held that victim impact evidence was not admissible in the penalty phase of a capital trial. This prohibition included evidence of: 1) the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family; and 2) family members’ opinions and characterizations of the crimes and the defendant. Id. at 507-09, 107 S.Ct. 2529.

Several years later, the Court overruled part of Booth, holding that the Eighth Amendment erects no per se bar against the introduction of victim impact evidence. Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). The Court explicitly noted, however, that: [o]ur holding today is limited to the holdings of Booth ... and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), that evidence and argument relating to the victim and the impact of the victim’s death on the victim’s family are inadmissible at a capital sentencing hearing.

Booth also held that the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment. No evidence of the latter sort was presented at the trial in this case. Payne, 501 U.S. at 830 n. 2, 111 S.Ct. 2597. Thus, the Booth prohibition against evidence of family members’ opinions and characterizations of the crime, the defendant, and the appropriate sentence remains good law. See Humphries v.

Ozmint, 397 F.3d 206, 217 (4th Cir.) (en banc), cert. denied, — U.S. -, 126 S.Ct. 128, 163 L.Ed.2d 133 (2005) (noting that “the Payne Court did not alter Booth’s holding that admitting evidence of the victims’ [family members’] opinions of the crime and of the appropriate sentence for the defendant violates the Eighth Amendment”); United States v. Bernard, 299 F.3d 467, 480-81 (5th Cir.2002) (finding statements from the victim’s family members characterizing the defendants and offering opinions about the nature of the crime inadmissible under Booth); Hain v.

Gibson, 287 F.3d 1224, 1238-39 (10th Cir.2002) (expressly recognizing “that the portion of Booth prohibiting family members of a victim from stating ‘characterizations and opinions about the crime, the defendant, and the appropriate sentence’ during the penalty phase of a capital trial survived the holding in Payne and remains valid”); Parker v. Bowersox, 188 F.3d 923, 931 (8th Cir.1999) (discussing Payne and Booth and holding that “family members of the victim may not state ‘characterizations and opinions about the crime, the defendant, and the appropriate sentence’ at the penalty phase” of a capital trial).

In Brady, the Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment.” 373 U.S. at 87, 83 S.Ct. 1194. This evidence was not material, and therefore could not violate Brady, because it was neither relevant nor admissible; indeed, there is no reasonable (or even remote) probability that, had the evidence been disclosed to the defense, the result of the trial would have been different. See Strickler v.

Greene, 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (noting that, under Brady, failure to disclose evidence is material if there is a reasonable probability that the result of the trial would have been different if the suppressed documents had been disclosed to the defense). The district judge ruled that he would “not allow any witness to make a recommendation to the jury that you should take [Brown’s] life or that you should spare his life. That is a direct invasion of the jury’s province.” That ruling is fully consonant with the Supreme Court’s holdings in Booth and Payne.

In short, we can discern no Brady violation, let alone plain error. D. Motion To Quash DFACS Subpoena As for this issue, Brown contends that the magistrate judge erred in quashing a subpoena Brown served upon the Liberty County Department of Child and Family Services (“DFACS”) for the production of “[a]ny and all material relating to Sadie Brown and/or Roy Morgan, their living and health circumstances, and any information regarding their residence at 6724 Leroy Coffer Highway, Fleming, Georgia, 30308.” The Georgia Attorney General’s Office moved to quash the subpoena.

The magistrate judge conducted an in camera inspection of the relevant files and quashed the subpoena, noting that “[the files] contain no information relevant to defendant’s case and no information that would warrant disclosure of these typically confidential records. In fact, defendant’s name is not even referenced in any of these records.” We lack jurisdiction to review the magistrate judge’s order because Brown never appealed the ruling to the district court. See United States v. Brown, 342 F.3d 1245, 1246 (11th Cir.2003); United States v.

Renfro, 620 F.2d 497, 500 (5th Cir.1980) (noting that “[t]he law is settled that appellate courts are without jurisdiction to hear appeals directly from federal magistrates”). Accordingly, we may not consider whether the district court abused its discretion in quashing the subpoena. E.

Motion To Prohibit Death-Qualification Of The Jury Brown also claims the district court erred in denying his motion to prohibit the “death-qualification” of the jury, contending that his rights were violated by excluding those jurors who could not be impartial in the penalty phase, but who could have been qualified to hear the guilt-innocence phase. We review this question of law de novo. See United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir.2004). Brown contends that the magistrate judge recommended denying the motion and that the recommendation was adopted by the district judge.

However, a review of the record reveals that the magistrate judge denied the motion outright and that Brown did not appeal that ruling to the district judge. Thus, we are without power to consider this argument. See Brown, 342 F.3d at 1246. Nevertheless, even if the issue were properly presented to us, we would readily reject the argument on the merits. In Lockhart v.

McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), the Supreme Court held the Constitution does not “prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial.” Id. at 165, 106 S.Ct. 1758. Thus, Brown’s claim must fail; the district court properly death-qualified the jury before the guilt phase of the trial. F.

Motion for Bifurcated Voir Dire On this issue, Brown says the district court erred by denying his motion to bifurcate voir dire. Essentially, he sought an opportunity first to question jurors pri- or to the guilt-innocence stage of the trial, and then a second opportunity for voir dire before the penalty stage of the trial. Brown readily concedes that the natural consequence of this practice would be that the jury determining his guilt might not be the same one to determine his sentence.

This issue is closely related to Brown’s prior suggestion, that the jury should not have been death-qualified because qualification eliminates some jurors who, while unqualified to decide his sentence, would plainly have been qualified to determine his guilt or innocence. This is a question of law and again we review it de novo. See Murrell, 368 F.3d at 1285. Although the government appears to concede that this issue was properly preserved, a review of the record again reveals that the magistrate judge denied the motion for bifurcated voir dire and that Brown did not appeal the ruling to the district judge.

Thus, we have no jurisdiction to consider the ruling on appeal. See Brown, 342 F.3d at 1246. But, even if the parties are correct that the issue has been properly presented, Brown’s argument fails on the merits. First, the Federal Death Penalty Act requires, except in four circumstances that are not relevant here, that the sentencing hearing “shall be conducted before the jury that determined the defendant’s guilt.”. 18 U.S.C. § 3593(b)(1). Thus, it would have been statutorily impermissible for the district judge to use one set of jurors for the guilt phase and then a different group for the penalty phase.

See United States v. Williams, 400 F.3d 277, 281 (5th Cir.2005). Second, Brown contends that the use of a death-qualified jury during the guilt-innocence stage violates his Eighth Amendment and due process rights by subjecting him to a conviction-prone jury. Constitutional challenges to the use of a death-qualified jury in the guilt-innocence portion of the trial have been soundly and repeatedly rejected. See, e.g., Lockhart, 476 U.S. at 176-84, 106 S.Ct. 1758; Williams, 400 F.3d at 281 (noting that “constitutional challenges by defendants to unitary capital jury procedures have failed”).

Again, in Lockhart, the Supreme Court held that the use of a death-qualified jury during the guilt-innocence stage neither deprives a defendant of his Sixth Amendment right to a jury drawn from a representative cross

section of the community nor his right to an “impartial” jury. The Supreme Court flatly rejected the claim that excluding jurors from the guilt-innocence phase who could not be impartial during the punishment phase resulted in a jury “slanted” in favor of conviction. 476 U.S. at 177-78, 106 S.Ct. 1758. Brown provides no rationale for why the identical argument would be any more persuasive if considered under the rubric of the Eighth Amendment, and he offers no case law in support of his position. Thus, even if the question were properly presented, we would be constrained to reject it. G.

Improper Statements During Death-Qualification Brown also says the district judge improperly told jurors during voir dire that the death sentence would be appropriate unless there were mitigating factors weighing in favor of a life sentence. Furthermore, Brown urges that the district court inappropriately indicated to jurors during voir dire that they may consider mitigating factors (as opposed to telling them they had to consider mitigating factors). Brown did not object to these questions during voir dire, and we therefore review this issue only for plain error. See United States v.

Massey, 89 F.3d 1433, 1442 (11th Cir.1996) (failure to object to jury instructions reviewed for plain error). Under plain error review, we may not correct an error the defendant failed to raise in the district court unless there is: “(1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005) (quotation marks omitted).

If all three conditions are met, we may then exercise our discretion to notice a forfeited error, but only if “(4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation marks omitted). The district court conducted individual voir dire with potential jurors in an effort to “death qualify” the panel. In Morgan v.

Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), the Supreme Court reiterated that “the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Id. at 728, 112 S.Ct. 2222 (quotation marks and alterations omitted).

A juror who could never vote for capital punishment, regardless of the court’s instructions, or a juror who would automatically vote for the death penalty in every case, should be stricken for cause. Id. at 728-29, 112 S.Ct. 2222. The district court conducted the necessary voir dire in this case, excusing for cause those jurors whose views would prevent or substantially impair their performance, particularly those who had predetermined their death penalty vote.

Brown complains that in the process of doing so, the district judge misstated the law, implying to jurors that the death penalty was the appropriate punishment unless the mitigating factors outweighed the aggravating factors.

Brown provides several examples of this claimed error that occurred during the questioning of panel members who were eventually placed on the jury, the most egregious of which were: Question posed to venireman Little: If you decide that there is sufficient mitigating evidence, mitigating meaning less, or something that lessens the impact, could you vote for life imprisonment without benefit of parole? Question posed to venirewoman Brewer: And if you were convinced that there were mitigating circumstances that made life imprisonment without benefit of parole the more appropriate sentence, could you vote for that?

Brown maintains that the same error occurred with respect to seven other members of the jury, although the two examples noted above are the most explicit. The Federal Death Penalty Act makes clear that a jury must consider both aggravating and mitigating factors at the penalty stage of the trial.

But, as the statute makes abundantly clear, a jury need not find a mitigating factor in order to impose a non-death sentence: [T]he jury ... shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. 18 U.S.C. § 3593(e) (emphasis added). The district judge’s questions during voir dire were not to the contrary.

The court never told a venireperson that he could impose a life sentence if and only if he found a mitigating circumstance justifying a non-death sentence. Rather, the trial judge simply asked, as he was required to do, whether the prospective juror could impose a life sentence if he felt that was the punishment warranted. The district judge’s questions may have been inartfully worded.

However, there are several large, inferential leaps between the district judge’s question asking whether a juror could impose a life sentence and the juror’s conclusion that he would be permitted to impose a life sentence if and only if he found the existence of a mitigating factor. Moreover, any juror who actually drew that attenuated conclusion — and there is no evidence that any did — was later given explicit jury instructions that correctly stated the law. There was no error, plain or otherwise.

But, even if there were plain error, it did not affect Brown’s substantial rights because the district judge explicitly corrected the purported error when he gave the jury the following instruction before they began their deliberations: you are to determine whether the aggravating factors found to exist sufficiently outweigh the mitigating factors; or, in the absence of mitigating factors whether the aggravating factors alone are sufficient to support a finding that a sentence of death be imposed[.

R]e-gardless of your findings with respect to aggravating and mitigating factors, however, you individually or collectively are never required to recommend a sentence of death. This instruction plainly told the jury that it could impose a life sentence even if it found no mitigating factors and explicitly made clear that a jury is never required to impose a death sentence. “A curative instruction purges the taint of a prejudicial remark because a jury is presumed to follow jury instructions.” United States v. Simon, 964 F.2d 1082, 1087 (11th Cir.1992) (quotation marks omitted). See also United States v.

Noone, 913 F.2d 20, 35 (1st Cir.1990) (finding that a misleading question in voir dire was cured by proper jury instructions and therefore did not result in “manifest injustice” under a plain error analysis). H. Juror Fahey Brown also cites as error the district court’s decision to dismiss one juror, Kristin Fahey, for cause. We review a district court’s decision to strike a prospective juror for cause for abuse of discretion. United States v. Abraham, 386 F.3d 1033, 1035 (11th Cir.2004). Juror Fahey was struck for cause during the death-qualification stage of voir dire.

The district judge and counsel for both sides asked her numerous questions concerning her ability to impose the death penalty. She struggled with her answers, saying that generally she was opposed to the death penalty, but that there might be circumstances where she could vote for a death sentence. She indicated she would want to listen to all the facts and had not predetermined whether she would vote for or against the death penalty. However, toward the end of the inquiry, she had the following exchange with the prosecutor: [A.U.S.A.] Newman: Ms.

Fahey, would you make your decision on the ultimate punishment in this case based on your internal set of values or on what the law is that [the judge] will give you to apply, which by your oath as a juror you would be sworn to follow? Juror: I believe I would probably make the decision based upon my own internal values. Mr. Newnan: Even if those might conflict and be different than what [the judge] is telling the jury to apply? Juror: Yes. The district judge acknowledged that this was a very close call.

But the last question when she said— and I think she’s altogether candid — I think we all agree, one, that here is a juror that is struggling. She is, by anybody’s judgment, also at the point where she will say under no circumstances would she impose the death sentence. But she is not prepared to go quite that far, because she can imagine certain circumstances that she would go. But then she says, again in total candor, that I would have to impose my standards and I could not necessarily follow the law or the instructions. The Supreme Court made it clear in Adams v.

Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), that it is proper to strike for cause those potential jurors whose views on capital punishment “would prevent or substantially impair the performance of [their] duties as ... juror[s] in accordance with [the court’s] instructions and ... oath.” Id. at 45, 100 S.Ct. 2521.

See also id. (“[t]he State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court”); id. at 48, 100 S.Ct. 2521 (noting that the State could “exclude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths”) (emphasis added).

Determining when a juror will reject the law as given by the trial court in favor of her own belief system is a difficult undertaking, but despite the difficulty inherent in the task and that the record will not always make bias “unmistakably clear,” “there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.” Wainwright v. Witt, 469 U.S. 412, 425-26, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Thus, “deference must be paid to the trial judge who sees and hears the juror.” Id. at 426, 105 S.Ct. 844.

Based on Fahey’s equivocating answers and her ultimate conclusion that she would vote based on her own internal values and not on the instructed law, the district court did not abuse its discretion in striking her for cause. Cf. Stewart v. Dugger, 877 F.2d 851, 855 (11th Cir.1989) (finding no With-erspoon violation where a potential juror, although indicating a strong aversion to the death penalty, admitted that after hearing the facts he could “maybe” consider imposing death). I.

Statement To Juror Regarding Guilty Plea Brown also claims that he is entitled to a new trial because the district judge inadvertently told a prospective juror, who was eventually seated on the jury, that Brown had pled guilty. Neither party objected and, therefore, we review the issue for plain error. See United States v. Massey, 89 F.3d 1433, 1442 (11th Cir.1996) (failure to object to jury instructions reviewed for plain error).

While death-qualifying the potential jurors, the transcript indicates that the following colloquy took place between the trial court and a woman who was eventually seated as a juror: The Court: Now, you understand that the defendant has entered a plea of guilty. Juror: Yes, Your honor. The Court: The law presumes him to be not guilty. You understand that. Juror: I do. The Court: And the responsibility is on the government to convince a fair and impartial jury, and each member of it, that he is guilty of the offense charged, and his guilt must be demonstrated beyond a reasonable doubt. You understand that.

Juror: I do. Clearly, the district judge’s statement that Brown had entered a guilty plea was either a slip of the tongue or a transcription error. It was immediately followed by statements indicating that the law presumes the defendant not guilty and that the government has the burden of proving his guilt beyond a reasonable doubt.

The district judge later instructed the jury that the government had the burden of overcoming the presumption of innocence by proof that removes all reasonable doubt and specifically told the jury that “it will be your duty to decide whether the government has proved beyond a reasonable doubt the specific facts necessary to find the defendant guilty of the crime or crimes charged in the indictment.” If the district judge did, in fact, tell the juror that Brown had entered a guilty plea, there was error and it was plain.

However, we have some difficulty believing so obvious and egregious an error would have occurred without immediate objection from both the defendant and the government. Because there was no objection, a transcription error may be the more plausible explanation. But, even if the district judge did make a slip of the tongue, it did not affect Brown’s substantial rights because it occurred well before jury deliberations and was explicitly corrected during the court’s jury instructions. See United States v.

DeMasi, 40 F.3d 1306, 1321-22 (1st Cir.1994) (noting that “the challenged statements, though problematic, are isolated snippets culled from over thirty pages of generally cautious, careful, and correct instructions. At most, the statements were inadvertent slips of the tongue with limited prejudicial force.”); United States v. MeCue, 643 F.2d 394, 396 (6th Cir.1981) (no reversible error where judge inadvertently said the word “convict” when he meant to say “acquit” in the course of otherwise correct jury instructions). J.

Hearsay Brown also objects to the introduction of three statements received in evidence at the trial on grounds that they were hearsay and violated his rights under the Confrontation Clause of the Sixth Amendment. First, Brown objects to the testimony of Darlene Washington, which was offered at the guilt-innocence stage of the trial. Washington testified that she was in the Post Office on the morning of the robbery and overhead Brown tell Gaglia that his name was “Jason.” Brown did not object to this testimony at trial, so we review it for plain error. See United States v.

Campbell, 223 F.3d 1286, 1288 (11th Cir.2000). In the first place, Brown’s statement of his name was not hearsay because it was the statement of a party-opponent. See Fed.R.Evid. 801(d)(2)(A); United States v. Munoz, 16 F.3d 1116, 1120 (11th Cir.1994) (noting that “a statement is not hearsay if it is the statement of the party against whom it is offered”). Moreover, admission of the statement did not violate the Confrontation Clause. See United States v. Zizzo, 120 F.3d 1338, 1354 (7th Cir.1997); United States v. Moran, 759 F.2d 777, 786 (9th Cir.1985); United States v.

Rios Ruiz, 579 F.2d 670, 676-77 (1st Cir.1978); see also 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 802.05[3][d] at 802-25 (2d ed.2005) (noting that “a party cannot seriously claim that his or her own statement should be excluded because it was not made under oath or subject to cross-examination”). Next, Brown objects to Dietrechusn Davis’s testimony, which was also offered by the government at the guilt-innocence stage. Davis testified that Sadie Brown (Brown’s mother) received a phone call and said “Meier, where you at?

Meier, you didn’t kill that lady, no.” Davis testified that Sadie then started crying, at which point he left. The defendant objected at trial, alleging hearsay and that “I can’t cross examine her.” We review a district court’s hearsay ruling for abuse of discretion. United States v. De La Mata, 266 F.3d 1275, 1300-01 (11th Cir.2001). The district judge overruled the hearsay objection. Although his reasons for doing so are not entirely clear from the record, the statement was an excited utterance and thus subject to a hearsay exception.

See Fed.R.Evid. 803(2) (providing a hearsay exception for “[a] statement relating to a startling event or condition made while the declarant was under stress of excitement caused by the event or condition”). The district court did not abuse its discretion in ruling that the statement was admissible. Brown also claims that Davis’s testimony violated his confrontation clause rights and was impermissibly admitted in contravention of the Supreme Court’s recent decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)..

In Crawford, the Supreme Court held that testimonial evidence from an absent witness may be admitted only when the witness is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Id. at 68, 124 S.Ct. 1354. The Crawford rule applies only to testimonial evidence. Id.; United States v. Cantellano, 430 F.3d 1142, 1145 (11th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 1604, — L.Ed.2d-, No. 05-9303 (March 20, 2006) (noting that non-testimonial evidence “is not subject to confrontation”).

Justice Scalia, writing for the majority in Crawford, offered some examples of what the Court had in mind when it used the term “testimonial” evidence: ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, pri- or testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially ... extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions ... statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354 (quotation marks, citations and alterations omitted). The Court further noted that a historical version of Webster’s Dictionary defines “testimony” as “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. at 51, 124 S.Ct. 1354 (citing 1 N. Webster, An American Dictionary of the English Language (1828)) (alteration in original).

We need not divine any additional definition of “testimonial” evidence to conclude that the private telephone conversation between mother and son, which occurred while Sadie Brown was sitting at her dining room table with only her family members present, was not testimonial. See id. (noting that “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not”); United States v. Hendricks, 395 F.3d 173, 181 (3d Cir.2005) (surreptitiously monitored conversations not testimonial); Horton v.

Allen, 370 F.3d 75, 83-84 (1st Cir.2004) (holding that a statement from a conversation, admitted under the state-of-mind exception to the hearsay rule, was non-testimonial because it was private, was not made under examination, was not contained in a formal document, and was not made “under circumstances in which an objective person would reasonably believe that the statement would be available for use at a later trial” (quotation marks omitted)).

The phone conversation Davis overheard obviously was not made under examination, was not transcribed in a formal document, and was not made under circumstances leading an objective person to reasonably believe the statement would be available for use at a later trial. Thus, it is not testimonial and its admission is not barred by Cranford. Finally, Brown objects to the testimony of Catherine Webb, Gaglia’s sister, which was offered at the penalty phase of the trial. Webb testified about how Gag'lia’s death affected Gaglia’s husband and children.

She did not testify about any direct statements any other family member made; instead, she testified as to how those people were affected by Gaglia’s death. Thus, for example, she said that one of Gaglia’s sons “felt under his emotional state of mind that he could not [go to college] at this time. He could not concentrate to go onto college.” Webb stated that “I just spoke with [Gaglia’s husband] just a few minutes ago. He could not appear. His emotional state, he is going through therapy ...

And he knew that under the advise of his therapist, and a counseling group that he had gone to with other family members that have lost closed [sic] loved ones, that he could not, he could not manage to go through this court hearing.” There was no objection to the admission of Webb’s testimony, so we review it for plain error. See United States v. Campbell, 223 F.3d 1286, 1288 (11th Cir.2000). First, we do not believe that any of Webb’s testimony was hearsay.

Hearsay is defined as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). “A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” Fed.R.Evid. 801(a). Webb’s testimony did not include statements by Gaglia’s husband or children. Rather, Webb simply offered her impression of how they were coping with Gaglia’s death, which was not hearsay.

Moreover, even if the statements could be characterized as hearsay, the Federal Rules of Evidence do not apply during 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.

Johnson, 223 F.3d 665, 674 (7th Cir.2000) (“[T]he Federal Death Penalty statute does not require evidence of aggravating or mitigating factors be admissible under the rules of evidence.”). Cf. Chandler v. Moore, 240 F.3d 907, 918 (11th Cir.2001) (holding that hearsay is admissible at a state capital sentencing hearing as long as the state statute allows the defendant the opportunity to rebut any hearsay information). Brown has not shown that Webb’s testimony was unfairly prejudicial, that it confused the issues, or that it misled the jury. Moreover, he had every opportunity to rebut the evidence.

Thus, there was no statutory error. Brown also says that admission of Webb’s testimony violated Crawford. We need not determine whether Crawford applies to the penalty phase of a federal capital trial because, even if it did, the challenged evidence is not testimonial. The evidence provided by Webb was based on her observations of Gaglia’s family members. To the extent that any of those people made statements about which Webb then testified (again, we can discern no “statements,” at least to the extent that term is defined in the hearsay context), they were not testimonial in nature.

They were made by one grieving family member to another. They were not made in the context of an examination, were not recorded in a formal document, and were not made under circumstances that would lead a reasonable person to believe they would be later used at trial. Moreover, there is no evidence to show that the family members were unavailable; to the extent Brown wished to do so, he could have called any of them as a witness. Thus, because the statements were not testimonial, we need not address whether Crawford applies in the penalty phase of a federal capital trial. K.

Crime Scene Photographs Brown also cites as an evidential mistake that the district court admitted color crime-scene photographs of Gag-lia’s body. Again, we review the trial court’s evidentiary rulings for an abuse of discretion. United States v. Ruiz, 253 F.3d 634, 639-40 (11th Cir.2001). In reviewing issues under Rule 403, we look at the evidence in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact. United States v. Jernigan, 341 F.3d 1273, 1284 (11th Cir.2003).

The trial court allowed the admission of six photographs investigators took of Gaglia’s body as it appeared at the crime scene. The photos were admitted at the guilt stage but were not republished at the penalty phase. Brown moved to suppress the photographs before trial, and the district court denied his motion subject to renewal at trial when relevance would be more apparent. Brown renewed his objection at trial.

The evidence is undoubtably relevant; the photographs make facts of consequence, such as Gaglia’s death and the number and nature of stab wounds to her body, more probable than they would be without the evidence. See Fed.R.Evid. 401; United States v. DeParias, 805 F.2d 1447, 1453 (11th Cir.1986) (holding that “[pjhotographs of homicide victims are relevant in showing the identity of the victim, the manner of death, the murder weapon, or any other element of the crime”), overruled on other grounds by United States v. Kaplan, 171 F.3d 1351, 1356-57 (11th Cir.1999) (en banc).

Moreover, at the penalty phase of the trial, the photographs were relevant in determining the existence of one of the alleged statutory aggravating factors: whether Brown “committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim.” 18 U.S.C. § 3592(c)(6). However, evidence that is otherwise relevant “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403.

Brown says that the pictures were unfairly prejudicial because' the condition of the body as displayed in the photographs was not the same as the condition of the body after he committed the murder because the body was moved when rescuers attempted to revive Gaglia. Moreover, Brown contends that resuscitation efforts increased the amount of blood on and around the body, making the attack look more vicious than it really was. We are unpersuaded. In DeParias, we rejected an argument that admitting photographs of a “badly decomposed corpse” was an abuse of discretion under Rule 403. 805 F.2d at 1453-54.

Although we did not specifically address an argument that the changed state of the body rendered the photos unfairly prejudicial, we implicitly rejected such a contention. The changes in appearance that accompany decomposition are significantly greater, and more gruesome, than those that were present in this case. Although there may have been slightly more blood shown in the photographs than there was when Brown left the scene, that is a direct and natural consequence of his decision to repeatedly stab the victim. There was no unfair pr

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