UNITED STATES of America, Plaintiff-Appellee, v. Thomas Morocco HAGER, Defendant-Appellant. Hope House; The Children's Law Center; Scholarchips; Yasmine Arrington; The Osborne Association; National Resource Center on Children and Families of the Incarcerated, Amici Supporting Appellant, 721 F.3d 167

Affirmed by published opinion. Judge FLOYD wrote the majority opinion, in which Judge DUNCAN joined. Judge WYNN wrote a dissenting opinion. FLOYD, Circuit Judge: Appellant Thomas Morocco Hager appeals his conviction and capital sentence for intentionally killing Barbara White while engaged in a drug trafficking conspiracy in violation of 21 U.S.C. § 848(e)(1)(

A) and 18 U.S.C. § 2. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 21 U.S.C. § 848(q), and 18 U.S.C. § 3595. Because we discern no reversible error, we affirm both the conviction and the sentence. I. Hager was convicted of and sentenced to death for killing White while engaged in a drug trafficking conspiracy in violation of 21 U.S.C. § 848(e)(1)(

A) and 18 U.S.C. § 2. The trial consisted of three parts: (1) the guilt-innocence phase, (2) the death penalty eligibility phase, and (3) the sentencing selection phase. The government adduced evidence of the following facts during the first phase of the trial: In November 1993, Hager was engaged in the sale and distribution of crack cocaine at Nelson Place, in the Southeast area of Washington, D.C. In October 1993, he shot and wounded Christopher Fletcher and Ric Pearson, two members of a drug gang from Ely Place, over a dispute about one of his guns. Ely Place is a few blocks from Nelson Place.

After the shooting, Hager went into hiding, living with his then-girlfriend, Shenita King, in her apartment in Maryland. After the shooting, sometime in mid-November, White stopped by King’s apartment. King did not allow White into the apartment, however, and did not tell her that Hager was there. Even so, Hager was very upset because no one was to know where he lived. White had previously dated and had a child with Williams Seals, a member of the Ely Place drug gang. Because Hager feared that White would tell others of his whereabouts, he decided that he would kill her.

On November 29, 1993, Hager, King, Arlington Johnson, and Lonnie Barnett went to White’s Alexandria, Virginia, apartment. When they arrived that evening, King knocked on White’s patio door. White, who was feeding her thirteen-month-old baby daughter Alexis, invited them in. Shortly after they arrived, White showed King and Hager Alexis’s room. She then took a brief telephone call. Shortly after the call, Hager turned up the volume on the television, pulled out a gun, and hit White’s face with enough force to break her jaw and knock out a tooth.

He and Barnett then took White, crying and bleeding, down the hallway to her bedroom. Hager told Johnson to run some water in bathtub. All the while, King stayed in the living room with Alexis. Throughout the ordeal, Hager repeatedly asked White whether she told her baby’s father, Seals, where Hager lived. White insisted that she had not. Hager sat White on the bed and instructed Barnett to find something with which to gag her. After he gagged her, he and Barnett walked her to the bathroom.

Hager told her to get in the bathtub and then grabbed some hot curlers, plugged them in, and threw them into the water, attempting unsuccessfully to electrocute White. Next, he told Johnson and Barnett to go to the kitchen and retrieve some knives with which to stab White. They followed his instructions. All told, the three stabbed her over eighty times in her legs, chest, neck, face, hands, buttocks, and back. After some of the knives broke or' bent, Hager instructed Johnson and Barnett to retrieve more knives.

At some point, Hager put White face down into the water and stood on top of her to make sure that she was dead. When Barnett insisted that they go, Hager “said that he couldn’t leave because he could get the death penalty for it, and he wanted to make sure that she was dead.” After Hager was convinced that "White was dead, he, King, Johnson, and Barnett proceeded out the door, but not before taking the telephone off of the hook and locking the door behind them, leaving Alexis alone in the apartment with her dead mother.

On their way back to the District, Hager counseled the others not to tell anyone about the murder and teased Barnett for being scared. He also mocked White’s pleas for her life and her concern for Alexis. He later bragged that Johnson and Barnett “were soldiers now, and that [they] go hard.” Hager’s five-week three-phrase trial occurred in October 2007. He did not testify at any point in the trial.

At the conclusion of the first phase, the guilt-innocence phase, the jury found Hager guilty of the intentional killing of White while engaged in a conspiracy to distribute fifty grams or more of crack cocaine, in violation of 21 U.S.C. § 848(e)(1)(

A) and 18 U.S.C. § 2.

Thereafter, during the second phase of the trial, the death penalty eligibility phase, the jury unanimously found beyond a reasonable doubt that Hager “was eighteen (18) years of age or older at the time of the offense charged in the indictment,” that he “intentionally killed Barbara White,” and that the following statutory aggravating factors (or aggravators) were present: Thomas Morocco Hager: (1) has been convicted of another offense resulting in the death of a person, for which a sentence of life imprisonment was authorized by statute. (2) has been convicted of two other offenses punishable by a term of imprisonment of more than one year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury upon another person. (3) knowingly created a grave risk of death to a person in addition to Barbara White in the commission of the offense and in escaping apprehension for the offense. (4) committed the offense charged after substantial planning and premeditation. (5) distributed a controlled substance, namely crack cocaine, to a juvenile. (6) committed the offense charged herein in an especially heinous, cruel, or depraved manner in that it involved torture and serious physical abuse to Barbara White.

Based on these factors, the jury found Hager statutorily eligible for the death penalty. See 18 U.S.C. § 3593(c) (setting forth the procedure for proving the existence of the statutory aggravating factors); 21 U.S.C. § 848(n)(1994) (amended by Pub.L. No. 109-77, § 221(2) (2006)) (listing the statutory aggravating factors). Finally, in the third phase of the trial, the sentencing phase, the jury was called upon to determine whether the statutory aggravating factors and the non-statutory aggravating factors sufficiently outweighed the mitigating factors (or mitigators), both statutory and non-statutory.

Although the jury was required to find the aggravators unanimously and beyond a reasonable doubt, any number of jurors could find a mitigator by a preponderance of the evidence and then those jurors could consider that mitigator in deciding whether to vote for a sentence of life or death. The non-statutory aggravating factors and mitigating factors, both statutory and non-statutory, are as follows: NON-STATUTORY AGGRAVATING FACTORS

(1) On or about April 23, 1990, the defendant, juvenile at the time, possessed with the intent distribute cocaine. He was found guilty by adjudication on or about September 18,1990.

(2) From in or about 1992, and continuing until at least in or about 1997, the defendant repeatedly bought and sold cocaine and crack cocaine in and around Washington, D.C., and directed others to buy and sell cocaine and crack cocaine. The defendant illegally obtained, possessed, used, and carried , numerous firearms in relation to and in furtherance of his drug trafficking activities. The defendant regularly used violence and threats of violence to further and protect his drug business.

(3) On or about October 22, 1993, the defendant shot and severely wounded Christopher Fletcher and Ric Pearson, two rival drug dealers, in Washington, D.C.

(4) On or about March 30, 1995, the defendant killed Jerome Robinson.

(5) On or about February 26, 1996, the defendant directed Loneldon Weldon, his cousin, to kill Cornell Coplin. Coplin died as a result of the shooting.

(6) On or about October 20, 1996, the defendant killed Londell Duvall.

(7) On or about March 15, 2003, while incarcerated at U.S.P. Pollock, a penitentiary, the defendant was observed hitting another inmate during a large scale prison fight, which resulted in a prison lock down.

(8) On or about April 27, 2004, while incarcerated at U.S.P. Pollock, the defendant was disciplined for possession of a dangerous weapon, an eight-inch long metal shank with a sharpened point on one end.

(9) On or about June 29, 2004, while incarcerated at U.S.P. Pollock, a penitentiary, the defendant was observed hitting and kicking another inmate during a prison fight, which resulted in a prison lock down.

(10) The defendant’s statements and actions following the murder of Barbara White reflect a lack of remorse.

(11) The defendant poses a future danger to others in that he is likely to commit, and to direct others to commit, additional acts of violence in any setting.

(12) The defendant caused injury, harm and loss to the victim and the victim’s family and friends, as evidenced by the victim’s personal characteristics and by the impact of her death upon the victim’s family and friends. MITIGATING FACTORS A.. Statutory Mitigating Factors

(1) Thomas Morocco Hager was youthful, although not under the age of 18. 0 Number of jurors who so find

(2) Others, equally culpable in the crime, will not be punished by death because their age at the time of the offense renders them statutorily ineligible for the crime. 0 Number of jurors who so find

(3) Factors in Thomas Morocco Hager’s background or character mitigate against imposition of the death sentence. 2 Number of jurors who so find B. Non-Statutory Mitigating Factors

(1) If not sentenced to death, Thomas Morocco Hager will be punished by a sentence of life imprisonment with no possibility of release. 5 Number of jurors who so find

(2) Arlington Johnson will not be sentenced to death for his role in the murder of Barbara White, because his age at the time of the offense renders him statutorily ineligible for the death penalty. 0 Number of jurors who so find

(3) Lonnie Barnett will not be sentenced to death for his role in the murder of Barbara White, because his age at the time of the offense renders him statutorily ineligible for the death penalty. 0 Number of jurors who so find

(4) Shenita King will not be sentenced to death for her role in the murder of Barbara White. 0 Number of jurors who so find

(5) The fact that Lonnie Barnett’s plea agreement includes the possibility that the government will ask the Court to reduce his sentence is something that weighs against imposition of a sentence of death for Thomas Morocco Hager. 0 Number of jurors who so find

(6) The fact that Arlington Johnson’s plea agreement includes the possibility that the government will ask the Court to reduce his sentence is something that weighs against imposition of a sentence of death for Thomas Morocco Hager. 0 Number of jurors who so find

(7) The offer of immunity for Shenita King in this case is something that weighs against imposition of a sentence of death for Thomas Morocco Hager. 0 Number of jurors who so find (8) ... [T]he fact that Williams Seals kept guns and money in a safe in Barbara White’s apartment constitutes a mitigating factor. 1 Number of jurors who so find (9) ... [T]he evidence fails to establish Thomas Morocco Hager’s guilt of a capital crime with sufficient certainty to justify imposition of a sentence of death. 0 Number of jurors who so find (10) ... [T]he evidence establishes that it was Thomas Morocco Hager’s belief that William Seals was out to kill him and that fact constitutes a mitigating factor. 0 Number of jurors who so find

(11) The Bureau of Prisons has facilities adequate to monitor and prevent any future assaults and violent conduct by Thomas Morocco Hager. 0 Number of jurors who so find

(12) A sentence of life imprisonment without the possibility of release is severe and exacts both significant physical restraint and hardship as well as great psychological pain, particularly because Thomas Morocco Hager is left for years to contemplate his wrongdoing and to feel the loss of his children, friends and family. 2 Number of jurors who so find

(13) A sentence of life imprisonment without the possibility of release is severe because Thomas Morocco Hager is a young man who, based upon his life expectancy, reasonably can expect to serve decades of confinement. I Number of jurors who so find

(14) If incarcerated, Thomas Morocco Hager is unlikely to represent a continuing danger to society, as he is already showing signs of “aging out.” 0 Number of jurors who so find

(15) Demonstrated factors in Thomas Morocco Hager’s childhood, background and character recommend against the imposition of the death sentence and recommend in favor of life imprisonment without the possibility of release. 7 Number of jurors who so find

(16) The imposition of a life sentence without the possibility of release would preserve the opportunity for Thomas Morocco Hager to remain available to his daughters through their adolescent years and beyond. II Number of jurors who so find

(17) Thomas Morocco Hager has proven himself to be capable of having a positive relationship with his daughters. 0 Number of jurors who so find

(18) Thomas Morocco Hager’s childhood experiences include being prematurely sexualized by his uncle. 0 Number of jurors who so find

(19) Thomas Morocco Hager’s childhood circumstances led to his leaving school when he was a young adolescent. 0 Number of jurors who so find

(20) Thomas Morocco Hager’s parents offered no supervision when he was a young child. 10 Number of jurors who so find

(21) At the time of Barbara White’s death, Thomas Morocco Hager had no prior adult convictions. 0 Number of jurors who so find

(22) Thomas Morocco Hager’s childhood was filled with risk factors. 9 Number of jurors who so find

(23) Thomas Morocco Hager’s childhood enjoyed few protective factors. 8 Number of jurors who so find Upon weighing the aggravating factors, both statutory and non-statutory, against the mitigating factors, both statutory and non-statutory, the jury found that the ag-gravators sufficiently outweighed the miti-gators and, thus, recommended that Hager be sentenced to death. Pursuant to the verdict, the district court sentenced Hager to death. See 21 U.S.C. § 848(1)(1994). This appeal followed. II. Hager first contends that the evidence adduced at trial was insufficient to convict him under § 848(e)(1)(A).

We conduct a de novo review of challenges to the sufficiency of the evidence supporting a jury verdict, United States v. Kelly, 510 F.3d 433, 440 (4th Cir.2007), and will affirm the jury verdict when, “viewing the evidence in the light most favorable to the prosecution, [it] is supported by ‘substantial evidence,’ ” United States v. King, 628 F.3d 693, 700 (4th Cir.2011) (quoting United States v. Smith, 451 F.3d 209, 216 (4th Cir.2006)).

Substantial evidence is such “evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc). “We review questions of fact, other than the ultimate question of guilt, for clear error. Determinations of the meaning of statutory phrases, however, constitute legal conclusions that we review de novo.” United States v. Peoples, 698 F.3d 185, 189 (4th Cir.2012) (emphasis omitted) (citations omitted).

As both the Supreme Court and this Court have recognized, “appellate reversal on grounds of insufficient evidence ... will be confined to cases where the prosecution’s failure is clear.” Id. (quoting Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)) (internal quotation marks omitted). Defendant was indicted under 21 U.S.C. § 848(e)(1)(A), which provides: [A]ny person engaging in or working in furtherance of a continuing criminal enterprise [ (CCE) ], or any person engaging in an offense punishable under

section 841(b)(1)(

A) of this title or

section 960(b)(1) of this title who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death. There are three prongs to this statute. See United States v. Aguilar, 585 F.3d 652, 657 (2d Cir.2009). The first prong covers those who intentionally kill someone while “engaging in ... a [CCE].” Id. (quoting 21 U.S.C. § 848(e)(1)(A)) (internal quotar tion marks omitted).

The second prong concerns the one who intentionally kills another while “working in furtherance of a [CCE].” Id. (quoting 21 U.S.C. § 848(e)(1)(A)) (internal quotation marks omitted). And, the third prong envelops that person who intentionally kills another while “ ‘engaging in an offense punishable under

section 841(b)(1)(A) ... or

section 960(b)(1)’ of Title 21, e.g., while manufacturing, distributing, or imposing large quantities of drugs, see id. §§ 841(b)(1)(A), 960(b)(1), or conspiring to do so.” Id. at 657-58 (quoting 21 U.S.C. § 848(e)(1)(A)). We are concerned here with the third prong. As a preliminary matter, Hager maintains that § 848(e)(1)(

A) applies only to substantive drug offenses and, thus, is inapplicable to a drug conspiracy such as the one we have here. But this is simply not so. Conspiracy to distribute and possess with intent to distribute more than fifty grams of crack cocaine is “an offense punishable under

section 841(b)(1)(A).” 21 U.S.C. § 848(e)(1)(A); see id. § 846 (“Any person who attempts or conspires to commit any offense defined in this subehapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”) Thus, “the penalties established under § 841(

b) apply with equal force to attempts and conspiracies to violate the object offenses set forth in § 841(a).” United States v. Irvin, 2 F.3d 72, 75 (4th Cir.1993) As to his main argument, Hager is correct in his contention that a conviction under § 848(e)(1)(

A) requires evidence tying White’s murder to his drug trafficking charge. But, according to Hager, there is an insufficient relationship between the murder and his drug dealing to support the § 848(e)(1)(

A) conviction because “there was no allegation that he was selling drugs or otherwise involved in any narcotics activity when White was killed.” “If the ‘engaging in’ element required only the defendant’s membership in the conspiracy,” Hager contends, “then

Section 848(e)(1)(A), as written, would reach any intentional killing during that period.” On this point, we are unpersuaded. As the district court aptly noted, “Section 848(e)(1)(

A) applies to killings done while engaging in an offense, not

an act, punishable under § 841. An offense, of course, involves much more than a single act. The statute therefore is not limited to killings that are contemporaneous with

an act constituting a § 841 offense.” United States v. Hager, 521 F.Supp.2d 533, 536 (E.D.Va.2007); see also United States v. Santos, 541 F.3d 63, 68 (2d Cir.2008) (“So long as the defendant enters into the unlawful agreement before the killing, and the conspiracy is ongoing when the killing occurs, the drug-offense and killing elements of

section 848(e)(1)(

A) are satisfied by independent acts that overlap in time.”). The district court also correctly observed that this Court recognized in United States v. Tipton, 90 F.3d 861, 868-70 (4th Cir.1996), albeit indirectly, the applicability of § 848(

e) in a situation in which the intentional killing did not occur contemporaneous to the drug trafficking activity. In Tipton, of the seven murders committed, none occurred during a drug transaction. Id. at 868-70. We are bound by that precedent. So, what sort of connection is required between the drug offense and the murder?

When interpreting this statute, “Courts [have] universally concluded that a substantive, and not merely temporal, connection is required ... to sustain a conviction under § 848(e)(1)(A).” Aguilar, 585 F.3d at 658. “[A] substantive connection [between the murder and the drug offense] must be implied as an essential element of § 848(e).” Tipton, 90 F.3d at 887 n. 13.

With the record before us, we are firmly convinced that a reasonable jury “could accept as adequate and sufficient to support a conclusion of [Hager’s] guilt beyond a reasonable doubt,” Burgos, 94 F.3d at 862, that Hager was engaging in an offense punishable under

section 841(b)(1)(

A) when he killed White and that there was a substantive connection between his drug trafficking conspiracy and the killing. Although Hager repeatedly argues that White’s murder was unrelated to drugs, the evidence introduced at trial tells a different story. The government presented adequate and sufficient evidence that Hager killed White to eliminate the threat that he felt to himself and to his drug trafficking activities. Hager was engaged in a long-running drug conspiracy to distribute crack cocaine around Nelson Place in Southeast Washington, D.C., at the time that he killed White.

Guns are an integral part of the tool chest of those involved in the drug trade. United States v. Mobley, 40 F.3d 688, 697 (4th Cir.1994) (“This Court and other courts have long recognized that drug dealers use firearms to protect their narcotics and the large amount of cash in their possession.”). In fact, Hager shot Fletcher and Pearson, two members of the Ely drug gang, in a dispute regarding their possession of one of his guns. Seals, the father of White’s baby, Alexis, was also a member of the Ely group.

Thus, there was evidence in the record on which a reasonable jury could think that Hager killed White specifically because he feared that she might tell the group where Hager lived. A reasonable jury could also find, based on the evidence presented, that Hager killed White to protect and keep others from finding his safe house — which is what King’s apartment had become for him — where he could hide drugs, money and guns.

And, a reasonable jury could also find from the evidence that by having his two drug co-conspirators Johnson and Barnett help murder White, Hager purposed to strengthen his relationship with the men and tighten the cohesiveness of his drug organization. “The government has no burden to establish that a drug-related motive was the sole purpose, the primary purpose, or even that it was equally as important as any non-drug-related purpose, as long as it was one purpose.” United States v. Desinor, 525 F.3d 193, 202 (2d Cir.2008).

But here, we need not tease out which of Hag-er’s purposes for killing White were drug-related and which were not. All of Hag-er’s apparent purposes for killing White were intertwined with his drug conspiracy. Thus, it is for these reasons that we hold that the government presented sufficient evidence on which the jury could find the necessary nexus between Hager’s drug conspiracy and White’s murder to establish a violation of § 848(e)(1)(A).

But, even if that was not enough to sustain Hager’s conviction, we note that Hager’s trial counsel conceded at the Rule 29 motion hearing in the district court that “clearly, clearly, this killing, based on the evidence that the government has offered, certainly furthered drug trafficking, his conspiracy.

It certainly furthered it.” Hager’s appellate counsel, however, posits that “this comment seemed to refer to the confrontation with Fletcher and Pearson, not the killing of White, since she had no involvement with the stolen gun.” We have reviewed the transcript and find nothing to support appellate counsel’s contention.

Instead, it appears that Hager’s trial counsel admitted that White’s murder furthered Hager’s drug conspiracy because: (1) the evidence overwhelmingly demonstrated that fact and (2) trial counsel thought that the government had to establish that a drug transaction occurred at the time of the murder for § 848(e)(1)(

A) to apply. Because there was no evidence that any drug activity transpired at the time of White’s murder, trial counsel assumed that his acknowledgement was not dispositive. But, of course, although he was mistaken in thinking that a drug transaction had to occur at the time of the murder for liability pursuant to § 848(e)(1)(A), his concession that White’s murder furthered Hager’s drug conspiracy remains intact. Even with that concession, we note that we find unavailing Hager’s arguments that the logic, structure, and history of § 848(e)(1)(

A) limit the killings covered by the statute to those committed during or in furtherance of trafficking activities. First, Hager states, “In all reported CCE-murder decisions by this and other circuits, it appears that the killings were found to have been committed ‘in furtherance of the CCE. None applied the ‘engaging in’ clause to allow a broader form of liability.” From this, he concludes, “[A]n ‘in furtherance of relationship between the killing and the CCE thus marks the outer limit on liability for members of these extreme drug conspiracies ... strongly suggests the same must be true for those, like Hager, charged under the other prong of

Section 848(e)(1)(A).” But, Hager’s argument wholly ignores our long-settled practice of beginning, as we must, with the plain meaning of the statute. “The starting point for any issue of statutory

interpretation ... is the language of the statute itself.” United States v. Bly, 510 F.3d 453, 460 (4th Cir.2007). “We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’ ” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (citations omitted) (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981)).

The third prong of the statute, under which Hager was convicted, provides that any person who intentionally kills an individual while “engaging in an offense punishable under

section 841(b)(1)(A) ... or

section 960(b)(1) ... may be sentenced to death.” § 848(e)(1)(A). There is no ambiguity here. Thus, our inquiry is complete. One such as Hager who intentionally kills someone while engaged in a drug conspiracy is eligible for the death penalty under this statute. Still, Hager contends that if § 848(e)(1)(

A) is interpreted to cover murders that occurred neither during nor in furtherance of drug trafficking activity, as in this case, then the statute is void for vagueness under the Due Process Clause of the Fifth Amendment and the Eighth Amendment. He makes constitutional claims pursuant to the Tenth Amendment and the Commerce Clause, as well. We generally review a defendant’s challenge to the constitutionality of a statute de novo. United States v. Bostic, 168 F.3d 718, 721 (4th Cir.1999). However, when the issue is not presented to the district court, as is the case here, then we review for plain error.

See United States v. Martinez, 277 F.3d 517, 524 (4th Cir.2002) (“As a general proposition, ... it is well established that forfeited error is reviewed under a plain error standard.”). To secure relief under the plain error standard, a defendant must show “(1) error, (2) that is plain, and (3) that affect[s] substantial rights.” United States v. Thomas, 669 F.3d 421, 424 (4th Cir.2012) (alteration in original) (quoting Johnson v.

United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). “Due process requires that a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal, for ‘no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.’ ” Buckley v. Valeo, 424 U.S. 1, 77, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954)).

Thus, “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). However, “[a] statute need not spell out every possible factual scenario with ‘celestial precision’ to avoid being struck down on vagueness grounds.” United States v.

Whorley, 550 F.3d 326, 334 (4th Cir.2008). “A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.” Aguilar, 585 F.3d at 658 (quoting United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 60 L.Ed. 1061 (1916)). As to Hager’s Fifth and Eighth Amendment void for vagueness arguments, we are unable to agree. “ ‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The claimed error here is not clear.

As we have already explained, § 848(e)(1)(

A) is not ambiguous. Nor is it vague. It states simply that one who intentionally kills another while “engaging in an offense punishable under

section 841(b)(1)(A) ... or

section 960(b)(1) ... may be sentenced to death.” § 848(e)(1)(A). Hence, because “court of appeals cannot correct an error pursuant to Rule 52(

b) unless the error is clear under current law,” id., we decline Hager’s request for relief. Hager’s Tenth Amendment challenge meets the same fate. Although he does not develop the argument, in essence, he argues that a murder such as the one here is normally prosecuted by the Commonwealth of Virginia, not the federal government. Thus, the suggestion is that the federal government has overstepped its powers and violated the Tenth Amendment. But again, the alleged constitutional violation is neither plain, clear, nor obvious.

Concerning Hager’s Commerce Clause claim, as noted above, “[A]' substantive connection [between the murder and the drug offense] must be implied as an essential element of § 848(e).” Tipton, 90 F.3d at 887 n. 13. “Courts require[ ] a ‘substantive connection’ between the defendant’s drug activity and the charged killing in part to address the concern that, absent such a requirement, § 848(e)(1)(

A) would be subject to constitutional challenge on Commerce Clause grounds.” Aguilar, 585 F.3d at 658. Here, as explained above, there was sufficient evidence in the record to support the jury’s finding that there was a substantial connection between Hag-er’s drug conspiracy and his murder of White. As such, we find no error. In sum, the government presented sufficient evidence on which a reasonable jury could convict Hager on the § 848(e)(1)(

A) charge. Thus, we find no reversible error. III. We next turn to the issue of whether the district court erred when it rejected Hag-er’s proposed jury instruction concerning the “engaging in” portion of § 848(e)(1)(A). According to Hager, the district court compounded its error by instructing the jury that, to convict, they must find “that the killing was connected to the conspiracy in a meaningful way.” This instruction, Hager maintains, is an incorrect statement of the law. A district court’s “decision to give (or not to give) a jury instruction ... [is] reviewed for abuse of discretion.” United States v.

Russell, 971 F.2d 1098, 1107 (4th Cir.1992). A district court’s decision not to give a requested instruction by the criminal defendant amounts to reversible error only if the proffered instruction: (1) was correct, (2) was not substantially covered by the charge that the district court actually gave to the jury, and (3) involved some point so important that the failure to give the instruction seriously impaired the defendant’s defense. United States v. Lewis, 53 F.3d 29, 32 (4th Cir.1995).

Even if these factors are met, however, failure to give the defendant’s requested instruction is not reversible error unless the defendant can show that the record as a whole demonstrates prejudice. See United States v. Ellis, 121 F.3d 908, 923 (4th Cir.1997). We reject Hager’s arguments for at least two reasons. First, it would have been improper for the district court to have given Hager’s requested charge. And second, the district court’s instruction on the “engaging in” element was neither erroneous nor prejudicial.

Hager proposed the following instruction to the district court on the “engaging in” portion of § 848(e)(1)(A): The government must prove beyond a reasonable doubt that at the time Barbara White was killed, the defendant was then actively engaged in a drug trafficking offense punishable under 21 U.S.C. § 841. You may not find the defendant guilty merely because the defendant was a member of a drug trafficking conspiracy on the day of the offense. You may not find the defendant guilty if you find Barbara White’s death merely furthered the defendant’s drug trafficking activities.

You may only find the defendant guilty if you find: 1) Barbara White was killed by the defendant, 2) At the time the defendant killed Barbara White, he was actively engaged in a separate criminal act punishable under 21 U.S.C. § 841, and 3) Barbara White’s death was directly related to, and an integral part of, the underlying drug trafficking offense punishable under 21 U.S.C. § 841. The district court was correct in declining to give this proposed charge as it contains several errors. For example, it required the jury to find that Hager was actively involved in a drug trafficking act at the time of the murder.

But, as explained above, this is a misstatement of the law. Moreover, as also explained above, to the extent that the proposed instruction was meant to lead the jury to think that they could not convict Hager because he was engaged in a drug conspiracy at the time of the murder, and not a substantive drug offense, this was also error. Because Hager’s proposed instruction was inaccurate, the district court did not abuse its discretion in declining to give it to the jury. As to the instruction that was actually given, the parties dispute whether Hager preserved the alleged error below.

If he did, because he alleges that the instruction contains an incorrect statement of the law, our review is de novo. See United States v. Mouzone, 687 F.3d 207, 217 (4th Cir.2012). But, if he did not, it is for plain error. Because our determination on this issue is the same under either standard, we need not decide whether the alleged error was preserved. The district court instructed the jury, in relevant part, as follows: So, the elements of this crime, murder while engaged in drug conspiracy, are the following.

There are five: One, the government must prove that while a member of and engaged in the drug eonspiracy-that while a member of and engaging in the drug conspiracy charged in the indictment, the defendant either intentionally killed the victim or commanded, induced, procured or caused the intentional killing of the victim; that the death of the victim resulted from such activity of the defendant; that the intentional killing was done knowingly, and was connected in a meaningful way to the drug conspiracy; and that the drug conspiracy alleged in the indictment involved the distribution of at least 50 grams of cocaine base, commonly known as crack cocaine.

Now the government is not required to prove beyond a reasonable doubt that a drug transaction was underway at the time of the killing. But the government is required to prove that a drug conspiracy existed at the time of the killing, and that the defendant was a member of the conspiracy, and that the killing was connected to the conspiracy in a meaningful way. Hager takes great umbrage with the term “meaningful,” arguing that it fails to encompass the strength of the connection required between the drug charge and the murder before one can be found guilty of a violation of § 848(e)(1)(A). We cannot agree.

Contrary to Hager’s contentions otherwise, our review of the record and the relevant law convinces us that the instruction given by the district court effectively elucidates the necessary nexus between Hager’s drug conspiracy and White’s murder, removing any risk that he or any other “defendant could be found guilty simply on the basis of a temporal coincidence of a murder with a [conspiracy].” Tipton, 90 F.3d at 887.

Nevertheless, Hager continues to complain that “the jury needed something more definite and confined than simply a ‘meaningful’ connection, and should be told so.” But with this argument, Hager fails to appreciate the fact that a trial court has “ ‘considerable discretion in choosing the specific wording of [its] instructions,’ and we will not reverse unless an instructional error ‘is determined to have been prejudicial, based on a review of the record as a whole.’ ” See United States v. Whitfield, 695 F.3d 288, 305 (4th Cir.2012) (quoting Figg v. Schroeder, 312 F.3d 625, 640 (4th Cir.2002)).

Here, the instruction was not prejudicial when we consider the record as a whole. As already observed, the government introduced sufficient evidence for a reasonable jury to determine that Hager murdered White in an effort to hide and protect himself from Fletcher and Pearson, members of another drug gang, whom he shot over their possession of one of his guns. Further, as we have already stated, based on the evidence, a reasonable jury could find that Hager killed White to protect and keep others from finding his safe house.

And finally, a reasonable jury could also find from the evidence that by having his two drug co-conspirators Johnson and Barnett help murder White, Hag-er purposed to strengthen his relationship with the men and tighten the cohesiveness of his drug organization. Thus, even if the district court erred in its selection of the term “meaningful,” and we do not think that it did, the error was not prejudicial.

To the argument that the district court should have employed the term “in furtherance of’ to describe the necessary nexus to convict Hager under § 848(e)(1)(A), we note that in Hager’s proposed instructions to the district court, he stated that the jury could not find him guilty if it found “White’s death merely furthered [his] drug trafficking activities.” In other words, and as discussed above, according to Hager, whether White’s murder was “in furtherance” of his drug conspiracy was insufficient to sustain a conviction under § 848(e)(1)(A). Now, he appears to contradict his earlier argument.

But, we need not decide whether “in furtherance of’ would have been a better term. The district court was not required to choose a magic word to describe the necessary nexus, only an appropriately descriptive one. And we think that the word “meaningful” is appropriately descriptive. Yet, as already noted, even if it is not, from our review of the record as a whole, we find no prejudice to Hager because of the district court’s use of the word. Simply put, the evidence is overwhelming that there existed the necessary nexus between Hager’s drug conspiracy and White’s murder such that § 848(e)(1)(

A) is applicable. Thus, we find no error in the district court’s instruction on that charge. IV. Hager also argues that the district court abused its discretion by treating the jurors as anonymous in the courtroom. “[A] district court’s decision whether to empanel an anonymous jury is reviewable for abuse of discretion.” United States v. Dinkins, 691 F.3d 358, 371 (4th Cir.2012).

In capital cases, an anonymous jury is allowed under very limited circumstances: A person charged with treason or other capital offense shall at least three entire days before commencement of trial, excluding intermediate weekends and holidays, be furnished with a copy of the indictment and a list of the veniremen, and of the witnesses to be produced on the trial for proving the indictment, stating the place of abode of each venireman and witness, except that such list of the veniremen and witnesses need not be furnished if the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person. 18 U.S.C. § 3432.

This Court has further stated: [A] district court may empanel an anonymous jury only in rare circumstances when two conditions are met: (1) there is strong reason to conclude that the jury needs protection from interference or harm, or that the integrity of the jury’s function will be compromised absent anonymity; and (2) reasonable safeguards have been adopted to minimize the risk that the rights of the accused will be infringed.

Dinkins, 691 F.3d at 372. “A lesser degree of anonymity may entail disclosing to the parties the names of the venire members, but identifying them only by number in open court.” Id. at 371. That is what occurred here: Hager and his counsel received a list of the jury venire, but they were referred to only by number in open court.

Five factors, commonly referred to as the “Ross factors,” are helpful in deciding whether there are “strong reasons” for an anonymous jury, id. at 373: (1) the defendant’s involvement in organized crime, (2) the defendant’s participation in a group with the capacity to harm jurors, (3) the defendant’s past attempts to interfere with the judicial process, (4) the potential that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties, and (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation or harassment.

Id. (quoting United States v. Ross, 33 F.3d 1507, 1520 (11th Cir.1994)). “However, this list of factors is not exhaustive, nor does the presence of any one factor or set of factors automatically compel a court to empanel an anonymous jury.” Dinkins, 691 F.3d at 373. Of course, it follows that the absence of any one factor or set of factors will not automatically compel a court not to empanel an anonymous jury.

The district court gave the following reasons for empaneling an anonymous jury: First, it stated, “It has been my experience in cases of this sort that jurors are extremely nervous about their names being known, and they prefer to be addressed by numbers, and to have their names used only when absolutely necessary.” The court’s rationale is further set forth in the following exchange between the government and the district court: [ASSISTANT UNITED STATES ATTORNEY (AUSA) ]: With respect to the cases dealing with anonymous juries, they do say that the Court should make findings, which the Court has.

I would point out that the defendant was convicted of obstruction of justice in one of his cases in Washington, D.C., and that, almost to a, to a person, every single government witness who has had contact with Mr. Hager has expressed fear about testifying in this case. And to the extent the witnesses have expressed those fears, I could easily see how a juror might express fear in a capital case. THE COURT: And indeed, that’s what you represented to the Court earlier. [AUSA]: Yes, Your Honor.

THE COURT: And it’s on that basis that I make the finding that this is an appropriate case for using numbers and keeping the list under seal, and anonymous, with allowing the defendant the kind of limited contact with the list and the names that I have indicated; namely, that he can assist counsel and look at the list during, during the voir dire and the jury selection, but he cannot have a copy of the list. And I don’t want this list getting out. And when the jurors are selected, their names and addresses are not to be grist for the media mill, or for the use of — improper use of anyone else.

In explaining its decision to the jury venire, the court stated: Now, we are identifying you by numbers in court, rather than by name, to protect you from contact in the media or other persons, curiosity seekers and the like, to protect you from unwanted publicity and to insure that no outside information is communicated to you through this process and the trial. And this is so that both parties receive a fair trial.

The fact that we are identifying you by number should have no impact at all on the presumption of innocence that the defendant is entitled to, or any impact in any other way as you consider and decide this case, if you are selected. Ross factors three and four are the most relevant here. As discussed below, factor five ultimately was not an issue. As to factor three, “the defendant’s past attempts to interfere with the judicial process,” Ross, 33 F.3d at 1520, Hager avows that his obstruction conviction arose from an incident approximately a decade earlier and did not involve any sort of threat.

But neither the timing of the obstruction nor whether a threat was involved is of any moment here. The concern is whether the defendant has shown a propensity for interfering with the judicial process. He has. Thus, this factor weighs against him. Hager, of course, makes no claim regarding factor four, “the potential that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties.” Id. Of course, how could he? This is a capital case in the which the maximum penalty is death.

This “potential punishment[] lend[s] support to a conclusion that [Hager] had an incentive to resort to ‘extreme measures in any effort to influence the outcome of [his] trial.’ ” Dinkins, 691 F.3d at 376 (quoting United States v. DeLuca, 137 F.3d 24, 32 (1st Cir.1998)). Thus, this factor also weighs heavily against him.

These two reasons alone-that Hager has shown a propensity to improperly interfere with the judicial process and that he was facing the ultimate punishment — are sufficient to meet the first Dinkins element that “there is strong reason to conclude that the jury needs protection from interference or harm, or that the integrity of the jury’s function will be compromised absent anonymity.” Dinkins, 691 F.3d at 372. As to the second Dinkins element, we observe that the district court did not tell the jury venire that Hager was not given a copy of the jury venire list.

Nor did the district court inform the jury veni-re or the jury itself that it was taking any precautions to protect the jurors from any potential harm that might be caused by Hager or any of his associates. See Din-kins, 691 F.3d at 378.

Instead, the district court told the panel that the reason they were identifying them by numbers in court, as opposed to by name, was “to protect [them] from contact in the media or other persons, curiosity seekers and the like, to protect [them] from unwanted publicity and to insure that no outside information [was] communicated to [them] through th[e] process and the trial.” Hager maintains, however, that the court’s comments that the jury’s anonymity was for the purpose of protecting them from media contact “must have rung false” as “only one suggested any possible exposure to news coverage about the case, and even she was uncertain.” According to Hager, the trial “received vanishingly little coverage before or during the trial.” Hag-er’s argument lacks merit.

Suffice it to say, the district court gave a neutral non-prejudicial reason for empan-elling an anonymous jury. See Dinkins, 691 F.3d at 378 (“[T]o protect a defendant tried by an anonymous jury from having the jury conclude that the defendant is a dangerous person from whom the jurors must be protected, courts customarily provide the jury a non-prejudicial reason for their anonymity.”). And we think that it was a reasonable one.

Contrary to Hag-er’s assertions otherwise, the amount of media coverage that the trial ultimately received does not suggest that jurors would not be contacted by “the media or other persons, curiosity seekers and the like,” or that they did not need to be protected from “unwanted publicity” or from having “outside information ... communicated to [them] through this process and the trial.” Accordingly, we are of the opinion that the district court “properly followed ‘the generally accepted practice for minimizing prejudice, which is to downplay (not accentuate) the significance of the juror anonymity procedure.’ ” Id. at 379 (quoting Ochoa-Vasquez, 428 F.3d at 1037).

And “any remote possibility of harm was mitigated further because the district court properly instructed the jury on the presumption of innocence.” Id. at 379. As noted above, the court instructed the jury venire that the fact that they were being identified by number in court “should have no impact on the presumption of innocence that the defendant is entitled to.” Without any evidence to the contrary, we must assume that the jury followed the instructions given to it by the court. United States v.

Runyon, 707 F.3d 475, 497 (4th Cir.2013) (“[A]bsent some specific ‘reason to doubt that the jury ... adhered to the district court’s directive,’ this [C]ourt will not conclude to the contrary.”) (quoting United States v. Castillo-Pena, 674 F.3d 318, 322 (4th Cir.2012)). Hence, for these reasons, we think that the district court satisfied the second Dinkins prong — “reasonable safeguards [were] adopted to minimize the risk that the rights of the accused [would] be infringed.” Dinkins, 691 F.3d at 372. Hager marshals two other arguments in this

section that we need address only briefly. First, he complains that an anonymous jury may have led the jury to think that he was a dangerous person from which it needed to be protected. Jury anonymity, Hager argues, was especially prejudicial to him at sentencing, where his future dangerousness was a contested issue. But, as observed above, the district court explained to the jury venire that they were being referred to by numbers, as opposed to names so that both parties receive a fair trial.

The fact that we are identifying you by number should have no impact at all on the presumption of innocence that the defendant is entitled to, or any impact in any other way as you consider and decide this case, if you are selected. Because we assume that juries abide by the instructions given to them, and Hager has given no reason why we should not, we hold that any harm that might have occurred from having an anonymous jury was assuaged by the district court’s jury instruction. Finally, Hager avers that an anonymous jury denied him his Sixth Amendment right to a public trial. But, this was a public trial.

And the fact that the jurors were referred to in court by number, and not name, does not make it any less so. If Hager’s contentions were true, then anonymous juries would never be allowed. But they are allowed. As detailed above, Din-kins not only indicates that we allow them, but also sets forth the standards for doing so. Hager cites to Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010), for his argument that his right to a public trial was violated. In Presley, the trial court had literally closed the voir dire portion of the underlying trial. Id. at 722.

The Supreme Court observed, There are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire. But in those cases, the particular interest, and threat to that interest, must “be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Id. at 725 (quoting Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1986)).

We make two observations: First, in Presley, the Supreme Court is undoubtedly addressing the issue of public trials, not anonymous juries. But, second, even if we were somehow to say that Hager’s trial was not a public one, we would still find that “the particular interest, and threat to that interest, ‘[was] articulated along with findings specific enough id. (quoting Press-Enterprise, 464 U.S. at 510, 104 S.Ct. 819), that we are able to determine that the court’s order was proper.

In sum, the district court did not abuse its discretion in finding that an anonymous jury was necessary, and it took reasonable steps to protect Hager’s rights. Thus, because both Dinkins factors were satisfied, we find that the district court did not abuse its discretion when it empaneled an anonymous jury. V. Next, Hager posits that district court abused its discretion in seating Juror 144 after questions arose regarding his ability to be fair and impartial. A district court’s determination whether to remove a juror for cause will not be overruled except for a “manifest abuse of ... discretion.” Poynter v.

Ratcliff, 874 F.2d 219, 222 (4th Cir.1989). Indeed, its decision not to excuse a juror for cause is entitled to “special deference.” Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). The critical issue in deciding a challenge for cause is whether the juror “could be fair and impartial and decide the case on the facts and law presented.” United States v. Capers, 61 F.3d 1100, 1105 (4th Cir.1995). Hager raises three specific examples of Juror 144 stating that he did not think that he could be impartial.

First, when asked in the jury questionnaire whether the fact that this case involved a crime of violence would cause him to question whether he could sit as a fair and impartial juror, Juror 144 answered, “Yes.” In explaining his answer, he wrote, “I say yes but only if there is strong evidence against this person. Someone is still dead and someone killed that person. So what is the [e]vi-dence? Drugs and then someone dies.

Why?” During voir dire, the district court followed up on this question: THE COURT: I think the question is sometimes-let me put it to you this way: The evidence in this case will involve a crime of violence, and there will be evidence of violence. Do you believe you can listen carefully to that evidence and evaluate it fairly and impartially as a fair and an impartial juror? THE JUROR: Yes, I believe I could. THE COURT: Can you explain the answer — would you like to see your answer? Would that help you? THE JUROR: No, I remember my answer. THE COURT: All right, sir.

THE JUROR: Basically, I guess the — I guess my problem or issue is with the fact that someone is dead, and it was possibly done during illegal actions. And that is — with me, I kind of look at the victim here. It’s kind of, in my head I looked at, you know, the victim, illegal activities; and that is where I have my problems or my issues. THE COURT: Do you understand that the government has the burden of proving each and every element of the offense charged: Murder, premeditated murder with malice in the course of drug trafficking? The government has to prove all of that beyond a reasonable doubt.

Do you understand that? THE JUROR: I understand that. THE COURT: And the defendant begins with a presumption of innocence; that is, that he is not guilty of this? THE JUROR: Correct. THE COURT: Do you think you can give effect to those two instructions? THE JUROR: Yes, I would try. THE COURT: Do you think — is there any reason why you wouldn’t succeed? THE JUROR: No, I wouldn’t think.

Second, when asked in the questionnaire if he would find it difficult to obey the court’s instruction that the defendant is to be presumed innocent until the government has proven each element of the charged offense beyond a reasonable doubt, Juror 144 answered, ‘Tes.” When asked on the form to explain his answer, he stated, “I don’t want to say yes, but rather say maybe. It would all depend on the [e]vidence. Drugs and then someone gets killed. Why?” At voir dire, the district court followed up: THE COURT: Can you follow that instruction? THE JUROR: I would definitely try, sir.

THE COURT: Do you think there’s any reason you wouldn’t succeed? THE JUROR: I was just trying to answer it. I was trying to read the questions, and answer it the first thing that popped into my mind. And that’s how I answered the questions. I didn’t give much thought; I just read the question and then answered. THE COURT: Well, you understand that simply because a death occurred and there might be drugs involved, that does not mean that the defendant did anything? THE JUROR: Correct. THE COURT: And you understand that the government has to prove what the defendant did beyond a reasonable doubt?

THE JUROR: Correct. THE COURT: Are you — you are able to follow that instruction? THE JUROR: I would definitely try, yes. THE COURT: And are you able to follow the instruction that until the jury finds that he is guilty, he is presumed innocent and the jury may not find him guilty[?] You understand that? THE JUROR: Yes, I do understand it, sir. THE COURT: Do you think you can follow the instruction that the defendant is presumed innocent unless and until the jury finds otherwise? THE JUROR: I would definitely try, sir, yes. THE COURT: Do you know of any reason why you would not succeed in doing that?

THE JUROR: No sir. Third, at the end of the questionnaire, the following question is posited: “Is there anything about the nature of this case or about any of the questions in this questionnaire that suggests to you that you will not be able to sit as a fair and impartial juror and render a fair and impartial verdict in this matter?” In response, Juror 144 answered, “Yes.” In the explanation section, Juror 144 wrote: I worry about the fact that there were drugs and traffic[k]ing of those drugs. Because of that [illegal] activity someone died?

Why did that person [h]ave to die[?] Was she involved or just a person in the wrong place at the wrong time[?] What about her family? 1993? Why so long? When the district court asked him to explain his answer, he stated, Sir, it was just — it was just the first things that popped in my head when I was answering this question. Those are just, I guess, questions as to, you know, — you know, illegal drug trafficking, you know, someone’s got dead. I think about them, I think about the people who are left behind. I’m a law-abiding citizen, you know. I’ve done nothing but worked my whole life.

I believe in the legal system. It’s just the first things that popped in my head. And then all the questions, then, were in there, as to, okay, was the lady who passed away, was she involved in it? I mean, it just was a bunch of questions I had. That’s how I was thinking about this when I answered the question. The court followed up by asking him whether he could be fair and impartial, to which he responded, “I would definitely try.” The court continued: THE COURT: Do you know of any reason why you wouldn’t succeed? THE JUROR: No, sir.

THE COURT: Let me make sure, again, that you understand that merely because there may be evidence that someone was killed and evidence of drugs, that does not establish that the defendant committed any crime. Do you understand that? THE JUROR: Yes, sir. THE COURT: The government has to prove that beyond a reasonable doubt. Do you understand that? THE JUROR: Yes, sir. THE COURT: Would you be able to listen carefully and closely to the evidence as it is presented and render a fair and impartial verdict? That is, a verdict that is fair to the government and fair to the defendant? THE JUROR: I would try, sir.

THE COURT: Again, any reason why you would not succeed? THE JUROR: No, sir. Hager places much reliance on United States v. Thompson, 744 F.2d 1065 (4th Cir.1984), for his argument that the district court erred by not disqualifying Juror 144. In Thompson, after seeing a disturbing picture of a four-month old victim, one of the jurors informed the district court that he was unsure if he “could be totally fair.” Id. at 1067. The defendants moved for a mistrial, which the district court denied. Id.

After explaining that it was important that he keep an open mind, reminding the juror of the defendants’ presumption of innocence and that it was the government’s burden to prove guilt beyond a reasonable doubt, the district court said, ‘“So, I will ask you to resume with the case. Do you think you can do so?’ [The juror] replied, T will try. I am not sure, your Honor.’ The judge did not seek an affirmative response but said, ‘All right. That is all I can ask.’ ” Id.

On review, this Court held that the district court abused its discretion by going forward with the trial after the juror “gave an equivocal response to repeated questions about his ability to proceed with an open mind.” Id. at 1068. Thompson is of no help to Hager and is easily distinguished. Although Juror 144 and the juror in Thompson both initially stated only that they would try to be fair, the district court here followed up by asking if there was any reason that the juror could not be fair. And each time that question was posed, Juror 144 said that there was not.

The district court in Thompson, however, failed to solicit such a response. Given the high deference that we are to give the district court in the matter of jury disqualification, we are unable to say that the district court’s decision not to seat Juror 144 was a manifest abuse of discretion. To the extent that Juror 144 equivocated by saying that he “would try” to be fair to Hager, the court conscientiously and repeatedly followed up by asking if there was any reason that he would not succeed in his effort. And, each time, Juror 144 answered that there was not.

At the appellate level, we are reviewing a cold record. But the district court was on the scene. It heard Juror 144’s words, observed his demeanor, and judged his credibility. Thus, it was in a much better place than we to determine whether Juror 144 was being truthful in his statements that there was no reason why he could not be fair. And so because of the heightened deference that we give to the district court in matters such as this, we will not disturb its decision. VI. According to Hager, the district court also erred by excluding certain mitigating testimony from his two daughters.

Relying on United States v. Williams, 632 F.3d 129 (4th Cir.2011), Hager argues that our review of this claim is de novo, see id. at 132 (“This Court reviews evidentiary rulings implicating constitutional claims de novo.”). But referring to United States v. Basham, 561 F.3d 302 (4th Cir.2009), the government insists that our review is for an abuse of discretion, see id. at 325 (stating in a death penalty case: “We review evidentiary rulings of the district court for abuse of discretion.”). Because our decision would be the same under either standard, we need not decide this issue.

It is well settled that a capital defendant is entitled to submit any mitigating evidence in support of a sentence less than death. Payne v. Tennessee, 501 U.S. 808, 822, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). [T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Lockett v.

Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (footnotes omitted). However, the district court is not limited in its ability to exclude as irrelevant evidence that does not bear on the defendant’s character, prior record, or the circumstances of the crime. Id. at 604 n. 12, 98 S.Ct. 2954. Hager proposed several mitigating factors concerning his present and future relationship with his daughters and the impact his execution would have on them. He then sought to introduce evidence to support those proposed mitigators.

Many of Hager’s arguments center around three videotapes that he wished to admit during the sentencing phase of the trial. The first is of a child psychologist and defense expert, Dr. Hope Hill, interviewing Hag-er’s two then-thirteen-year-old daughters, Tonia Thomas and Anika King, about their relationship with their father and the impact his execution would have on them. The second videotape is of Anika and Tonia talking to each other about Hager and their relationship with him. It also contains execution impact testimony.

The third videotape shows the two daughters engaged in a telephone conversation with Hager. After some vacillation, the district court ultimately excluded all three of the videotapes. The district court ruled that the first videotape was too staged, was not subject to cross-examination, and contained execution impact evidence. The court did make clear, however, that Dr. Hill could testify about her interview with the girls. The court found that the second videotape also contained execution impact evidence and was cumulative of the testimony that the daughters would provide at trial.

And the court held that the third video amounted to allowing Hager to allocute without being subject to cross-examination. Hager complains that the district court erred in disallowing these videotapes into evidence. In addition, Hager also argues that the district court committed reversible error in limiting the testimony that Tonia and Ani-ka could offer at the sentencing hearing. In its ruling, the court said: I think they’re certainly entitled ... to tell the jury ... what their father’s involvement in their life has been and whether they feel their father loves them.

But their saying they love their father is precisely what gets to the impact on them. It’s really about Mr. Hager. It’s not about these children. It’s about his character. And, therefore, it’s his relationship with his daughters, how he’s manifested remaining in their lives. And whether he has manifested love and care for them. That’s what you should be focusing on and eliciting. The only ruling that I’ve really made is that you may not elicit testimony about how they feel about having their father taken away from them, about the death penalty or anything of that sort.

Hager complains: the district court’s rulings explicitly kept out ... the girls’ testimony and proffered video evidence about their love for their father, and about how happy they are, and how important it is to them, to talk with him, see him, and have him in their lives. Instead, ... the defense could only elicit from the girls strictly descriptive testimony, such as whether Hager sends them Christmas cards, how often they see him, and what he asks them about. In essence, Hager maintains that his constitutional rights were violated by the district court’s decision to exclude the above-described evidence.

We agree with the district court, however, that the evidence — both the videotapes and the testimony — was correctly barred. Because most of the arguments concern the introduction of execution impact testimony, whether in the videotapes or the disallowed testimony, we begin there. Contrary to Hager’s contentions, we think that allowing a capital defendant to argue execution impact as a mitigator is improper.

As the Fifth Circuit recently opined, “Because such evidence ‘does not reflect on [the defendant’s] background or character or the circumstances of his crime,’ ‘the Supreme Court has never included friend/family impact testimony among the categories of mitigating evidence that must be admitted’ during a capital trial.” United States v. Snarr, 704 F.3d 368, 401 (5th Cir.2013) (quoting Jackson v. Dretke, 450 F.3d 614, 618 (5th Cir.2006)).

In contrast, because “victim impact evidence relates to the harm caused by the defendant, Payne held that it is relevant to the jury’s assessment of ‘the defendant’s moral culpability and blameworthiness.’ ” Id. at 402 (quoting Payne, 501 U.S. at 825, 111 S.Ct. 2597). Although not bound by the Fifth Circuit’s ruling, we are persuaded by it. But, why is victim impact evidence allowed and execution impact on third parties forbidden? First, “victim impact evidence fundamentally differs from execution impact evidence, which in no way reflects on the defendant’s culpability.” Id.

Second, to allow evidence about the impact the execution will have upon a third party goes beyond testimony about the defendant’s character, prior record, or the circumstances of the crime. See Lockett, 438 U.S. at 604 n. 12, 98 S.Ct. 2954 (“Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.”) And third, the victim of a murder in a capital case is obviously unavailable to provide testimony at trial.

Thus, victim impact testimony allows the jury to know about the victim’s life. “[J]ustiee, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” Payne, 501 U.S. at 827, 111 S.Ct. 2597 (quoting Snyder v. Mass., 291 U.S. 97, 122, 54 S.Ct. 330, 78 L.Ed. 674 (1934)). The capital defendant is available to offer the jury all relevant information as to his life, background, character, and the impact any sentence will have on him.

To allow testimony of the impact on third parties, however, does nothing to inform the jury on any of these matters and upsets the balance set forth in Payne. And although we are mindful that some federal courts have allowed execution impact testimony, see e.g., United States v. Wilson, 493 F.Supp.2d 491 (E.D.N.Y.2007); United States v. Fell, No. 2:01cr12-01, 2005 WL 1634067 (D.Vt. July 5, 2005), Hager “cannot point to any federal case requiring admission of ‘execution impact’ testimony because there are no such cases. Lockett does not stand for that principle.” Stenson v.

Lambert, 504 F.3d 873, 892 (9th Cir.2007). Still, Hager argues that testimony concerning his daughters’ “love for their father, and about how happy they are, and how important it is to them, to talk with him, see him, and have him in their lives” should have been admitted. Although not binding, or directly on point, Coleman v. Saffle, 869 F.2d 1377, 1393 (10th Cir.1989), is persuasive.

In that habeas case, the court observed, “In the case before us the only evidence that might be considered as mitigating merely constituted statements that the witnesses loved [the defendant]; they in no way concerned an aspect of his ‘character or record and any of the circumstances of the offense.’ ” Id. (quoting Lockett, 438 U.S. at 604, 98 S.Ct. 2954). Then it went on to explain: The statements by Coleman’s wife and sister-in-law do not in any way bear on Coleman’s background or the circumstances of the offense.

The only way they could be considered to bear on Coleman’s character is to assume that a wife or sister-in-law would not love him unless he had some good character traits. We doubt that a mother’s love is given only to those children who deserve it; we doubt that a wife (or even a sister-in-law) expresses love only for a husband who deserves it. And even if the statement of love implies some good character traits it does not identify what they are. Thus, we hold that the statements here do not constitute “relevant mitigating evidence” on which a jury could base sympathy. Id. The same is true here.

Whether Hager’s daughters loved him sheds no light on Hager’s character, his prior record, or the circumstances of the offense. And we are unable to say that Tonia’s and Anika’s love for their father is conditioned on whether he had good character traits. As such, we are unable to say that Hager’s daughters’ love for him constitutes relevant mitigating evidence.

For the same reason that Hager’s daughters’ love for their father provides no insight into Hager’s character, his prior record, or the circumstances of his offense, the same is true regarding any evidence that the daughters are happy to see him or that it is important to them “to talk with him, see him, and have him in their lives.” Hence, because how Hager’s daughters feel about their father is not relevant mitigating evidence, the district court did not err in disallowing it.

Turning back to the videotapes, we have reviewed the testimony, the court’s rulings, and the videotapes and are of the opinion that the first two videotapes were either cumulative of testimony that was or could have been presented or contained testimony that was properly excluded because it constituted execution impact testimony. Moreover, as noted above, the district court allowed that Dr. Hill could testify about her conversation with Tonia and Anika. Although she did not, this was a choice Hager made.

For these reasons, we find no constitutional error or abuse of discretion as to the exclusion of those two videotapes. Concerning the third videotape, in which Hager’s daughters talked to him on speakerphone, Hager argues that it should have been admitted because it was not being offered for the truth of the matter asserted and was not an allocution.

According to Hager, “[t]he conversation was self-evidently a genuine and highly revealing glimpse of these 13-year-old girls’ relationship with their father.” We are of the opinion, however, that the district court was well within its discretion in concluding that the probative value regarding Hager’s character from the speaker phone conversation was substantially outweighed by the danger that the jury could be confused or misled.

But, even if we determined that the district court erred, “[w]e are confident that the jury would have reached the same sentence that it did even if the district court had admitted the [videotape].” United States v. Lighty, 616 F.3d 321, 363 (4th Cir.2010) (citation omitted).

Hager’s arguments concerning the value that the execution impact testimony would have had in countering the evidence concerning the future dangerousness aggravator and the allegedly extensive victim impact testimony meets the same fate — and for the same reasons: It is not a constitutional violation or an abuse of discretion when a court “exclude[s], as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.” Lockett, 438 U.S. at 604 n. 12, 98 S.Ct. 2954. • We have no reason to doubt the statements put forth by amici that a defendant such as Hager had to overcome several obstacles to develop a meaningful relationship with Tonia and Anika and that he has the potential to overcome those obstacles and help Tonia and Anika become productive members of society.

But this is a jury argument, not an appellate argument. Nothing about the district court’s rulings kept Hager from presenting these contentions to the jury. In addition to the testimony that Tonia and Anika were allowed to give, testimony about their relationship with their father and the duration of it could have been adduced from Dr. Hill, for instance, or Dr. Mark Cunningham, Hag-er’s future-danger expert, who had also interviewed Anika.

In sum, evidence regarding how Hager’s execution might affect his daughters would have provided the jury with nothing about his character, prior record, or the circumstances of his offense. And the fact that they love him or that it is important to them “to talk with him, see him, and have him in their lives” provides no insight, either. As such, we hold that the district court did not violate Hager’s constitutional rights nor abuse its discretion in not allowing presentation of the evidence described above. VII.

Hager also claims that the district court erred when it allowed the jury to be misled regarding potential sentence reductions for his co-defendants Johnson and Barnett. He specifically claims that the district court erred in the instructions that it gave on the mitigator concerning the likelihood of sentence reductions for Johnson and Barnett. As observed above, a district court’s “decision to give (or not to give) a jury instruction ... [is] reviewed for abuse of discretion.” Russell, 971 F.2d at 1107.

A district court’s decision not to give a criminal defendant’s requested instruction amounts to reversible error only if the instruction: (1) was correct, (2) was not substantially covered by the charge that the district court actually gave to the jury, and (3) involved some point so important that the failure to give the instruction seriously impaired the defendant’s defense. Lewis, 53 F.3d at 32. Even if these factors are met, however, failure to give the defendant’s requested instruction is not reversible error unless the defendant can show that the record as a whole demonstrates prejudice.

See Ellis, 121 F.3d at 923. Before the trial of this case, both Johnson and Barnett pled guilty and agreed to testify against Hager. Both were sentenced before Hager’s trial to a term of life imprisonment, although they understood the potential of a sentence reduction pursuant to Rule 35 of the Federal Rules of Criminal Procedure. At trial, Johnson admitted that he was hoping to receive a reduction of his sentence in exchange for his cooperation with the government.

On direct examination, Johnson agreed that the government was “obligated” to file a motion to reduce his sentence and, although he hoped to receive a sentence reduction, the district court would ultimately make that decision.

On cross-examination, Johnson conceded that the district court could reduce his sentence to probation “if the judge decided that was the right thing to do.” When asked whether he was “hoping for as big a reduction in [his] sentence as [he] possibly [could] get,” Johnson replied, “Yes.” Barnett also acknowledged that his plea agreement obligated him to cooperate with and testify for the government. He hoped for a sentence reduction in exchange. On cross-examination, he recognized that he would not receive a sentence reduction unless the government asked the district court to give him one.

During the government’s closing argument at trial, the prosecutor stated, “[Johnson and Barnett] came in here and testified because they pled guilty. They have been sentenced to life. Life. Are they seeking some type of a reduction? Yes. But they have pled guilty to this offense and have been sentenced to life.” Then, at the sentencing summation, Hag-er’s counsel argued that Johnson and Barnett would “some day walk out of prison.

They are both going to get sentence reductions because the government is going to ask the Court to reduce their sentences, because they cooperated.” The government stated in its summation that, because they were juveniles at the time of White’s murder, “legally, they can’t face the death penalty.” It also noted, The fact they expect, at some point, that there may be some benefit for their testimony, nothing wrong with that. They weren’t the ones who directed this, that orchestrated it. They weren’t the ones who called the shots. But for Tommy Hager, this crime would have never been committed.

He is the one who is most culpable. He is the one who, as an adult, not as a juvenile, committed this heinous offense. Approximately two years after Hager’s trial, the government filed Rule 35 motions asking for sentence reductions for both Johnson and Barnett, which the district court ultimately granted. At the Rule 35 hearing, the district court heard from White’s family, who disagreed with any sentence reduction for Johnson and Barnett. Even so, the district court reduced both Johnson’s and Barnett’s sentences to twenty five years’ imprisonment each.

In phase three of the trial, Hager submitted to the district court proposed separate mitigators, one for Johnson and one for Barnett, that referenced their possible sentence reductions: “[T]he expectation that

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