UNITED STATES of America, Plaintiff-Appellee, v. Sherman Lamont FIELDS, Defendant-Appellant, 483 F.3d 313

BENAVIDES, Circuit Judge, writing for the Court except as to Parts II.A.1-3. JERRY E. SMITH, Circuit Judge, writing for the Court in Parts II.A.1-3. This is a direct appeal in a federal death penalty case. Sherman Fields challenges his seven convictions and his death sentence, claiming more than twenty different errors. For the reasons below, we reject all of Fields’s claims of error and, accordingly, affirm his convictions and sentences. I. BACKGROUND The evidence presented at trial reveals the following: Fields was arrested on federal firearms charges in September 2001.

He was held in federal custody at the McClennan County Detention Center in Waco, Texas. In November 2001, Fields bribed a correctional officer — paying him $5000 in exchange for a key to the detention center’s fire escape door. Using the key, Fields escaped. After fleeing federal custody, Fields met up with a friend. Through this friend, Fields obtained a car and a .32 caliber revolver. That evening, Fields visited his ex-girlfriend, Suncerey Coleman, at Hill-crest Hospital in Waco, where she was attending to her newborn baby. Fields was angry with Coleman for seeing other men.

After Fields and Coleman conversed for some time, Fields convinced her to leave the hospital with him. They drove to Downsville, Texas, a small town just outside of Waco. The two had sexual intercourse, and then Fields shot Coleman twice in the head. After that, he dragged her dead body from the road into some underbrush to hide it. Several days later, Fields approached a Hillcrest Hospital employee, Tammy Edwards, while Edwards was exiting her car. Brandishing a handgun and grabbing her by the throat, Fields demanded that Edwards get back in the car.

Although Edwards was able to struggle free, Fields managed to wrestle away her car keys. Fields drove away in Edwards’s car. Coleman’s body was found on November 21, more than two weeks after her death. Three days later, police rearrested Fields.

The Government charged Fields by a seven-count indictment with (1) conspiring to escape from federal custody, (2) escaping from federal custody, (3) using and carrying a firearm during and in relation to escape, resulting in intentional murder, (4) carjacking, (5) using and carrying a firearm during and in relation to carjacking, (6) felon in possession of a firearm, (7) using and carrying a Ruger .22 caliber firearm during and in relation to escape. At trial, Fields asked to represent himself. The district court advised against such a course of action.

After Fields insisted, the court instructed his two previously-appointed attorneys to act as standby counsel. Following several days of evidence, the jury convicted Fields on all counts. The Government sought a death sentence on the murder count pursuant to 18 U.S.C. § 924{j)(l). At his separate trial on sentencing, Fields waived his right to proceed pro se and was represented by counsel. Fields objected on Confrontation Clause grounds to the admission of certain out-of-court statements to establish that Fields committed prior violent crimes.

After hearing additional evidence, the jury recommended the death penalty. Following this recommendation, the court sentenced Fields to death. Fields appealed, challenging his convictions and his death sentence. II. DISCUSSION While Fields raises a variety of potential trial errors, his more substantial claims concern the sentencing phase of trial. At the expense of a chronological account of the trial proceedings, we begin by addressing the sentencing issues before turning to the potential trial errors. A. CLAIMS OF SENTENCING ERROR 1.

CONFRONTATION Fields maintains that the district court erred by admitting testimonial hearsay at his capital sentencing proceeding in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Fields preserved this purely legal claim of error at sentencing, so our review is de novo. a.

The Nature of the Confrontation Clause Challenge Fields challenges, on the basis of the Confrontation Clause, the introduction at sentencing of several hearsay statements of five types: (1) statements made about him by his mother and juvenile probation officers in various records introduced into evidence by a Juvenile Probation Department official; (2) statements made about him by corrections officers in prison records introduced into evidence by state prison officials; (3) statements made by officers in police reports introduced into evidence by someone other than the officer who had made the report; (4) a detective’s description, based on the investigating officer’s report, of the drive-by shooting that led to Fields’s 1992 conviction of attempted murder; and (5) statements made by witnesses to police officers while the officers were investigating various past crimes in which Fields may have been involved but for which he was never charged (the statements being described in the officers’ testimony).

None of the challenged statements was presented as part of the government’s effort to establish the statutory aggravating factors that trigger death-eligibility under the Federal Death Penalty Act (“FDPA”). See 18 U.S.C. § 3592(c). Indeed, the statements are not in any way relevant to the eligibility-triggering factors included in the government’s Notice of Intent To Seek a Sentence of Death.

Those factors are (1) that Coleman’s death occurred during Fields’s commission of (or immediate flight from the commission of) an escape in violation of 18 U.S.C. § 751; (2) that Fields had been convicted of a federal or state offense punishable by imprisonment for more than one year, involving the use, attempted use, or threatened use of a firearm; and (3) that he had committed the offense after substantial planning and preparation to cause the death of another.

Rather, all of the challenged statements were introduced as part of the government’s effort to establish Fields’s past violent conduct and future dangerousness, both of which are nonstatutory aggravating factors that were included in the government’s notice. The establishment of nonstatutory aggravating factors is neither necessary nor sufficient to authorize imposition of the death penalty.

Nonstatutory aggravating factors may be considered by the jury in selecting an appropriate sentence once a defendant is found eligible for the death penalty, but they are not, and cannot be, used to determine that eligibility, -as the Supreme Court has explained: [Statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty.

But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. Zant v. Stephens, 462 U.S. 862, 878, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Because they relate only to nonstatutory aggravating factors, the hearsay statements challenged by Fields are relevant only to the jury’s selection of an appropriate punishment from within an authorized range and not to the establishment of his eligibility for the death penalty.

After reviewing the applicable caselaw and considering the particular importance of “individualized sentencing” in capital cases, we conclude that the Confrontation Clause does not operate to bar the admission of testimony relevant only to a capital sentencing authority’s selection decision. b. Constitutional Rights at Capital Sentencing: Williams v. New York Constitutional rights traditionally have been more circumscribed at sentencing, even capital sentencing, than during the guilt phase. In Williams v.

New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), a state judge sentenced a defendant to death on the basis of information obtained pursuant to a statutory presentence investigation and relayed to the judge outside the courtroom.

At the sentencing hearing, the judge explained why he believed the death penalty was appropriate: [The judge] stated that the pre-sentence investigation revealed many material facts concerning appellant’s background which though relevant to the question of punishment could not properly have been brought to the attention of the jury in its consideration of the question of guilt. He referred to the experience appellant “had had on thirty other burglaries in and about the same vicinity” where the murder had been committed.

The appellant had not been convicted of these burglaries although the judge had information that he had confessed to some and had been identified as the perpetrator of some of the others. The judge also referred to certain activities of appellant as shown by the probation report that indicated appellant possessed “a morbid sexuality” and classified him as a “menace to society.” Id. at 244, 69 S.Ct. 1079.

The defendant challenged his sentence on due process grounds, stating that his constitutional rights had been violated because “the sentence of death was based upon information supplied by witnesses with whom the accused had not been confronted and as to whom he had no opportunity for cross-examination or rebuttal.” Id. at 243, 69 S.Ct. 1079.

The Supreme Court rejected the challenge, holding that a judge, consistent with due process, could sentence a defendant on the basis of information untested in open court. “[P]ossession of the fullest information possible concerning the defendant’s life and characteristics” was “essential” to a judge’s selection of an appropriate sentence, and therefore we do not think the Federal Constitution restricts the view of the sentencing judge to the information received in open court.

The due-process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure. So to treat the due-process clause would hinder if not preclude all courts state and federal from making progressive efforts to improve the administration of criminal justice. Id. at 247, 251, 69 S.Ct. 1079. The Court was urged to “draw a constitutional distinction as to the procedure for obtaining information where the death sentence is imposed,” but it explicitly refused to do so. Id. at 251, 69 S.Ct. 1079.

Williams is a due process, rather than Sixth Amendment, case and therefore does not dictate the result of Fields’s Confrontation Clause challenge. We conclude, however, that Williams’s distinction between guilt and sentencing proceedings and its emphasis on the sentencing authority’s access to a wide body of information in the interest of individualized punishment is relevant to our Confrontation Clause inquiry.

Included in the notion that information influencing a sentencing decision need not be introduced in open court is the idea that defendants have no confrontation right at that phase and therefore that testimonial hearsay is not per se inadmissible. Indeed, the Court referred to the rights to confront and cross-examine as “salutary and time-tested protections” included within the due process guarantee but available only “where the question for consideration is the guilt of the defendant.” Id. at 245, 69 S.Ct. 1079. c.

Continuing Relevance of Williams If we adhere to the logic of Williams, Fields’s Confrontation Clause challenge must fail. The dissent, however, posits that Williams is irrelevant to the issue at hand because it is not explicitly a Sixth Amendment case and because the Williams Court “supposed that there was no ‘constitutional distinction’ between capital sentencing and ordinary sentencing.” Now that later decisions have suggested that “death is different,” the dissent takes the position that Williams has nothing to offer on the question of the admissibility of evidence at capital sentencing. We disagree. i.

Williams’s Status as a Due Process Case Does Not Preclude Its Relevance Although it did not do so under the guise of the Sixth Amendment, the Williams Court plainly discussed the right of confrontation. Furthermore, even in the wake of the Supreme Court’s incorporation of the Sixth Amendment against the states and its application of some, but not all, Sixth Amendment rights at sentencing, see infra, Williams has never been overruled. In fact, the Court continues to cite Williams for the proposition that there are no per se constitutional prohibitions on the introduction of hearsay at sentencing.

These decisions discuss Williams, and the constitutional limitations on the scope and type of information a sentencer may consider, under the umbrella of due process rather than the Sixth Amendment. This circumstance may be significant: In ruling that the enactment of the Sentencing Guidelines did not transform ordinary sentencing into a separate criminal proceeding, requiring, under Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), that a defendant be accorded the full panoply of trial rights, the Eighth Circuit stated the following: We recognize that Williams v. New York, Williams v.

Oklahoma[, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959)], and Specht all considered the application of the right to confront witnesses under the rubric of the Due Process Clause of the Fourteenth Amendment, [but] ... we note that Specht was decided after the Sixth Amendment’s Confrontation Clause was found applicable to the States via the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 ... (1965).

That the Supreme Court analyzed the right of confrontation both before and after Pointer as an issue of due process suggests that due process, not the Confrontation Clause, provides the relevant framework for testing the use of hearsay testimony at a sentencing proceeding. Other courts have relied on a due process analysis rather than the Confrontation Clause when considering the right of confrontation at sentencing. See, e.g., United States v. Berzon, 941 F.2d 8, 16-21 (1st Cir.1991); United States v. Castellanos, 904 F.2d 1490, 1495-96 (11th Cir.1990); United States v.

Carmona, 873 F.2d 569, 574-75 (2d Cir.1989); United States v. Richards, 784 F.Supp. 1373, 1377-78 (N.D.Ind.1992). United States v. Wise, 976 F.2d 393, 398 n. 2 (8th Cir.1992) (en banc) (emphasis added). More recently, in holding that Crawford does not apply at sentencing, the Seventh Circuit has stated that “the relevant provision at sentencing is the Due Process Clause, not the confrontation clause; Williams shows that witnesses providing information to the court after guilt is established are not accusers within the meaning of the confrontation clause.” United States v.

Roche, 415 F.3d 614, 618 (7th Cir.), cert. denied, — U.S. -, 126 S.Ct. 671, 163 L.Ed.2d 541 (2005). ii. Gardner v. Florida Perhaps more importantly, Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), a post-incorporation decision regarding procedural requirements at capital sentencing, establishes that Williams remains relevant in the capital sentencing context.

In Gardner, a plurality held that a defendant cannot be sentenced to death on the basis of information undisclosed to a defendant and contained in a presentence investigation report because, to satisfy due process, a capital defendant must be given a chance to rebut or explain adverse information introduced at sentencing. Id. at 362, 97 S.Ct. 1197. At first blush, this ruling appears to call the core holding of Williams into doubt.

Any characterization of Gardner as a Williams-killer and a harbinger of the application of the confrontation right at capital sentencing would be misplaced, however, for at least two reasons. First, Gardner, like Williams, is a due process case.

Asked to examine what rights defendants have under the Due Process Clause with regard to the presentation of evidence at capital sentencing, the Court noted that defendants were entitled to effective assistance of counsel during sentencing, id. at 358, 97 S.Ct. 1197, but made no mention of a right of confrontation, lending further credence to the notion that the categorization of Williams as a pre-incorporation due process case does not vitiate its relevance to the issue with which we are faced.

Second, Gardner explicitly declined to overrule Williams and instead distinguished it, stating that “the holding of Williams is not directly applicable to this case.” Id. at 356, 97 S.Ct. 1197. “[I]n Williams the material facts concerning the defendant’s background which were contained in the presentence report were described in detail by the trial judge in open court,” affording the defendant the opportunity “to challenge the accuracy or materiality” of said facts. Id.

The Gardner plurality held only that a defendant’s due process rights are abridged where he is given no similar “opportunity to deny or explain” adverse evidence, id. at 362, 97 S.Ct. 1197, and the plurality was careful to note that “[t]he fact that due process applies [at capital sentencing proceedings] does not, of course, implicate the entire panoply of criminal trial procedural rights,” id. at 358, 97 S.Ct. 1197 n. 9.

The dissent notes that the Gardner plurality also distinguishes Williams on the ground that “[t]he trial judge in Williams was not asked to ‘ “afford appellant a chance to refute or discredit any of [the statements at issue] by cross-examination or otherwise.” ’ ” Id. at 356, 97 S.Ct. 1197 (quoting Williams). As the Second Circuit has stated, however, Williams “does not turn on any concept of waiver by failure to object. It rests, rather, on the broad ground that due process does not preclude reliance on out-of-court information in imposing sentence.” United States v.

Fatico, 579 F.2d 707, 712 n. 11 (2d Cir.1978). More importantly, despite making note of the Williams defendant’s failure to object at sentencing to the denial of an opportunity to challenge the veracity of the relevant information through, inter alia, cross-examination, Gardner nowhere suggests that cross-examination of hearsay declarants in particular is necessary to satisfy due process. Gardner instead focuses solely on whether information has been disclosed to the defendant so that he can “deny or explain” it by any means.

Gardner offers no basis for assuming that cross-examination of a witness presenting hearsay evidence, for example, would not be sufficient to satisfy constitutional concerns, a fact that Professor John Douglass, whose work is cited frequently by the dissent, fully acknowledges: “The Court has never said that the right to ‘deny or explain’ sentencing information includes the confrontation rights that Williams rejected: the right to see, hear, and cross-examine the sources of that information.” For the same reason, Smith v.

Estelle, 602 F.2d 694 (5th Cir.1979), neither compels nor implies the rejection of the principles underlying Williams and the extension of the confrontation right to capital sentencing. There, we held that a defendant’s due process rights were violated by the state’s calling a psychiatrist as a surprise witness at a capital sentencing proceeding. Reasoning from Gardner, we stated that “[s]urprise can be as effective as secrecy in preventing effective cross-examination, in denying ‘opportunity for (defense) counsel to challenge the accuracy or materiality of evidence.” Id. at 699 (quoting Gardner).

We never hinted, however, that providing a defendant the opportunity to question, with advance preparation, a witness presenting hearsay evidence would not satisfy due process. The decision in Del Vecchio v. Ill. Dep’t of Corr., 31 F.3d 1363, 1387 (7th Cir.1994), offers support for the proposition that the due process guarantee of an opportunity to “deny or explain” evidence does not undercut Williams’s sanction of the use of out-of-court statements at capital sentencing.

In Del Vecchio, the court was faced with a capital defendant’s challenge, on Confrontation Clause grounds, to the in-court testimony of two psychiatrists “that they had perused medical reports from other psychiatrists who had examined Del Vecchio, and that the conclusions reached in those reports supported their opinions” that the defendant was a sociopath.

The court held that Illinois’s statute permitting the admission of such hearsay at capital sentencing adequately protected the defendant’s constitutional rights by “providing that [defendants] ‘shall be given a fair opportunity to rebut any information received at the hearing.’” Id. at 1388. The defendant had in fact been given that opportunity, because “[h]e had access to the contested hearsay reports; he could have cross-examined Drs. Rogers and Cavanaugh about the reports; he could have called his own experts.” Id.

Based on the above, we find wholly unpersuasive the Eleventh Circuit’s extension (in reliance on Gardner and Smith) of the Sixth Amendment confrontation right through the entirety of the capital sentencing process, and we note that that circuit is the only one to have taken that step.

The Seventh Circuit has ruled, pursuant to Williams, that the Confrontation Clause does not apply at capital sentencing, and the Fourth Circuit has expressed doubt that it does. d. “Death is Different” Expanding the scope of our inquiry beyond Gardner, the Supreme Court’s more general “death is different” jurisprudence does not call into doubt either the relevance or the persuasiveness of Williams on the question presented in the instant case.

An examination of Court precedent regarding the Sixth and Eighth Amendments indicates that “at least with regard to the rights listed in the Sixth Amendment, the Court’s rules for capital sentencing are essentially the same as for noncap-ital sentencing .... When it comes to Sixth Amendment rights at sentencing, it seems, death is not so different after all.” Douglass, Confronting Death, 105 Colum. L.Rev. at 1993. i. Application of Sixth Amendment Rights at Sentencing Since Williams was decided, certain Sixth Amendment rights have been applied incrementally to the sentencing process, capital and noncapital.

Now criminal defendants have a right to counsel throughout sentencing. Likewise, they have a right to a jury finding, beyond a reasonable doubt, of any facts necessary to expose a defendant to a higher maximum penalty, including death, regardless of whether those facts are labeled “sentencing factors” rather than elements of the offense. When it comes to the ultimate selection of an appropriate punishment out of a range of available options, however, there is no constitutional right to jury sentencing in a noncapital or capital case.

And with regard to the confrontation right, caselaw definitively maintains the Williams principle in the noncapital context and establishes that the right does not apply at sentencing. In particular, the Confrontation Clause does not operate to bar the introduction of testimonial hearsay at noncapital sentencing. Here we are asked to decide whether the confrontation right applies with full force throughout capital sentencing, despite the fact that it is nonexistent at ordinary sentencing.

Given that, as shown above, no other Sixth Amendment right has been applied {vel non) differently at capital sentencing from how it is applied at noncapital sentencing, there is little reason to establish divergent rules with regard to the confrontation right when the sentencing authority is selecting a sentence from within an authorized range.

On the basis of the Supreme Court’s consistent treatment of Sixth Amendment rights across capital and noncapital cases alone, we find unpersuasive the dissent’s textual argument for why the Confrontation Clause should extend through the entirety of the capital sentencing process, in light of the fact that the jury right extends only as far as the eligibility determination. The dissent contends that [t]he Jury Clause has a unique second limitation that does not apply to the Right to Counsel or the Confrontation Clause: only a jury “trial” is required.

A jury is only required at trial, whereas both the Right to Counsel and the Confrontation Clause apply more broadly to the whole “criminal prosecution,” and thus to sentencing. (Internal quotations and citations omitted.) This textual argument proves too much, for it would apply equally at noncapital sentencing, where it has already been established that the right of confrontation is nonexistent. The dissent’s argument in favor of the application of the Confrontation Clause throughout capital sentencing based on the interplay of the right to counsel and the right of confrontation falters on similar grounds.

The dissent states that “[t]he Sixth Amendment extends the rights both to counsel and to confrontation in ‘all criminal prosecutions,’ suggesting that where one right applies, the other does too.” The dissent further asserts that “[rjequir-ing confrontation in the FDPA’s trial-like sentencing regime is particularly appropriate given the interdependence of adversarial rights .... [A] meaningful Right to Counsel at capital sentencing depends on confrontation rights.” But if, as the dissent suggests, the right to counsel and the right of confrontation are adversarial tools that move in lock step, that again begs the question: Why is the confrontation right admittedly nonexistent at noncapital sentencing, even though the right to counsel plainly applies throughout such proceedings?

To address this dilemma, the dissent emphasizes that capital sentencing is “more adversarial” than is noncapital sentencing: “The Confrontation Clause should apply fully because FDPA sentencing, unlike noncapital sentencing, involves a trial-like adversarial proceeding.” For this proposition the dissent relies on Bullington v.

Missouri, 451 U.S. 430, 438-39 & n. 10, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), by stating that “[t]he Supreme Court applies certain ‘trial rights’ to adversarial sentencing hearings that bear the ‘hallmarks of the trial on guilt or innocence.’ ” Bullington, however, is a Fifth Amendment double jeopardy case, and the Court in Spaziano stated as follows: The fact that a capital sentencing is like a trial in the respects significant to the Double Jeopardy Clause ... does not mean that it is like a trial in respects significant to the Sixth Amendment’s guarantee of a jury trial.

The Court’s concern in Bullington was with the risk that the State, with all its resources, would wear a defendant down, thereby leading to an erroneously imposed death penalty. There is no similar danger involved in denying a defendant a jury trial on the sentencing issue of life or death. The sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant and the sentencer’s decision for life is final.

More important, despite its unique aspects, a capital sentencing proceeding involves the same fundamental issue involved in any other sentencing proceeding — a determination of the appropriate punishment to be imposed on an individual .... The Sixth Amendment never has been thought to guarantee a right to a jury determination of that issue. Spaziano, 468 U.S. at 459, 104 S.Ct. 3154 (emphasis added) (internal citations omitted).

The Court’s analysis indicates that despite the “unique aspects” of a capital sentencing proceeding, it is not, with respect to the ultimate issue to be decided (the selection of an appropriate punishment), any more “trial-like” than is ordinary sentencing, where the Confrontation Clause has been held inapplicable.

Further to justify its proposed anomalous divergent treatment of capital and noncapital sentencing with regard to the Confrontation Clause, the dissent also relies on the history of capital murder trials, stating that “[a]t the time the Confrontation Clause was written, a capital trial was a single, unified proceeding at which both guilt and sentence were decided. The Framers knew nothing of capital sentencing proceedings separate from trial.” If one was convicted of a capital felony, one was automatically sentenced to death.

According to the dissent, the trial became a “de facto sentencing proceeding” in which the jury would render a verdict in favor of a lesser crime if it did not think the death penalty was warranted. The dissent asserts that [t]he critical point is this: because these de facto capital sentencing proceedings took the form of full criminal trials, the defendant possessed full trial rights of confrontation. However, the notion that capital sentencing might be conducted “outside of an adversarial trial” is strictly a “post-constitutional” phenomenon.

The dissent goes on to state that at the time of the Founding, “cases suggest that judges conducted noncapital sentencing in informal proceedings featuring testimonial hearsay.” Therefore, according to the dissent, “[hjistory supports constraining confrontation rights in noncapital sentencing, but capital sentencing has a different history that suggests the Confrontation Clause should apply.” This logic is flawed.

The Framers did not know of an institution analogous to our capital sentencing procedure, because there was no mechanism in the trials that operated as so-called “de facto sentencing proceedings” for the exercise of discretion even after a jury determined that a defendant was eligible for the death penalty by convicting him of a capital felony.

A sentencing authority’s ability to select a lesser punishment in a capital case in spite of death-eligibility is indeed a “post-constitutional” phenomenon, and nothing in the history related by the dissent explains why the presumption should not be as follows: Now that capital sentencing includes such discretion, the exercise of it should be treated in the same manner in which the Framers understood discretionary sentencing in the noncapital context to be treated with respect to the use of testimonial hearsay.

Neither the text of the Sixth Amendment nor the history of murder trials supports the extension of the Confrontation Clause to testimony relevant only to penalty selection in a capital case. Furthermore, the manner in which the Supreme Court has proceeded in applying (vel non) Sixth Amendment rights during sentencing proceedings suggests there is no distinction between capital and ordinary sentencing for Sixth Amendment purposes, and accordingly the Court provides no indication that the reasoning of Williams has been abandoned in the capital context. ii.

The Eighth Amendment The Court’s Eighth Amendment jurisprudence likewise does not dictate that capital sentencing should be treated differently from ordinary sentencing with regard to the application of the Confrontation Clause. Rather, the Court’s emphasis on individualized sentencing in its Eighth Amendment decisions lends support to the animating principle behind Williams: When it comes to sentencing, the more information available for consideration by the sentencing authority, the more confidence we can have in the appropriateness of the sentence.

The dissent asserts that [t]he stringent “trial-like” procedures that govern capital sentencing derive from the Supreme Court’s unique concern with reliability in death penalty cases. “In capital proceedings generally, th[e] Court has demanded that fact-finding procedures aspire to a heightened standard of reliability. This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.” Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (internal citations omitted).

Confrontation is essential to reliability. Notably absent from the passage the dissent pulls from Ford is the citation the Court uses to support the notion that capital “factfinding procedures aspire to a heightened standard of reliability.” The Ford Court pointed to Spaziano, wherein it had opined that [t]he absence of a lesser included offense instruction increases the risk that the jury will convict, not because it is persuaded that the defendant is guilty of capital murder, but simply to avoid setting the defendant free. In Beck [v.

Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)], the Court found that risk unacceptable and inconsistent with the reliability this Court has demanded in capital proceedings. The goal of the Beck rule, in other words, is to eliminate the distortion of the fact-finding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence. Requiring that the jury be instructed on lesser included offenses for which the defendant may not be convicted, however, would simply introduce another type of distortion into the fact-finding process.

We reaffirm our commitment to the demands of reliability in decisions involving death and to the defendant’s right to the benefit of a lesser included offense instruction that may reduce the risk of unwarranted capital convictions. Spaziano, 468 U.S. at 455-56, 104 S.Ct. 3154. Importantly, as Spaziano indicates, where the Court discusses the need for reliability in the Eighth Amendment context, it is not talking about the appropriate sources for information introduced at sentencing or even, more generally, about the reliability of evidence.

It is instead focusing on (1) the need to delineate, ex ante, the particular offenses for which death is a proportionate punishment and (2) the need for the jury to be able to consider all factors (particularly mitigating, but also aggravating) relevant to choosing an appropriate punishment once the death penalty is in play. Reliable death sentences, under the Eighth Amendment, are those that result from a sentencing scheme that guards against arbitrariness by streamlining discretion at the eligibility stage, and then allows for the exercise of wide-ranging discretion at the selection stage.

In chastising a defendant for failing to recognize the “differing constitutional treatment” accorded to the eligibility and selection phases of capital sentencing, the Court has stated that “[i]t is in regard to the eligibility phase that we have stressed the need for channeling and limiting the jury’s discretion to ensure that the death penalty is a proportionate punishment and therefore not arbitrary or capricious in its imposition.” Buchanan v. Angelone, 522 U.S. 269, 275, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998). With regard to the selection decision, the Court in Woodson v.

North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), stated that “[b]e-cause of [the] qualitative difference [between death and imprisonment], there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” The Court explained that the need for greater reliability in the selection of an appropriate punishment entails not stricter evidentiary rules, but the assurance of “individualized sentencing” once a defendant is eligible for the death penalty: Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development.

See Williams v. New York, 337 U.S., at 247-249, 69 S.Ct. 1079, 93 L.Ed. 1337 ...; Furman v. Georgia, 408 U.S., at 402-403, 92 S.Ct. 2726, 33 L.Ed.2d 346 ... (Burger, C.J., dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v.

Dulles, 356 U.S., at 100, 78 S.Ct. 590 ... (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. Id. at 304, 96 S.Ct. 2978. Likewise, in Gregg v.

Georgia, 428 U.S. 153, 203, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Court rejected a constitutional challenge to “the wide scope of evidence and argument allowed at presentence hearings.” We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument. So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions.

We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision. Id. at 203-04, 96 S.Ct. 2909. All of this is not to suggest that eviden-tiary reliability is unimportant at capital sentencing. Rather, the salient point is that the particular reliability concern that distinguishes capital sentencing from ordinary sentencing under the Eighth Amendment is not evidentiary reliability. Evidentiary reliability surely is important at capital sentencing, just as it is at noncapital sentencing.

The Supreme Court’s Eighth Amendment jurisprudence, however, does not make evidentiary reliability any more important at capital sentencing than it is at noncapital sentencing, where the Confrontation Clause does not apply. A defendant in any sentencing proceeding must be given the opportunity to “deny or explain” the evidence against him, and Crawford does not suggest that confrontation is the only mechanism through which the reliability of testimony can be assessed. Cf. Whorton v. Bockting, — U.S. -, 127 S.Ct. 1173, 1183, 167 L.Ed.2d 1 (2007).

Rather, Crawford stands for the proposition that, where the clause applies, confrontation is the only permissible method of assessing reliability: To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. Crawford, 541 U.S. at 61, 124 S.Ct. 1354.

Our conclusion — that the Confrontation Clause is inapplicable to the presentation of testimony relevant only to the sentencing authority’s selection decision — does not doom defendants to being sentenced to death on the basis of unreliable hearsay evidence. “Although the Confrontation Clause does not apply at sentencing proceedings, this is not to say that there are no constitutional limitations on the use of hearsay evidence at such proceedings. A defendant may not be sentenced on the basis of ‘misinformation of constitutional magnitude.’ ” Wise, 976 F.2d at 402 (citing Tucker, 404 U.S. at 447, 92 S.Ct. 589).

Accordingly, “[d]ue process requires that some minimal indicia of reliability accompany a hearsay statement,” United States v. Petty, 982 F.2d 1365, 1369 (9th Cir.1993), and “a significant possibility of misinformation justifies the sentencing court in requiring the Government to verify the [hearsay] information,” Fatico, 579 F.2d at 712-13.

The FDPA in particular sets up a procedural framework at capital sentencing that adequately balances (1) the requisite access to a wide range of information to achieve individualized sentences and (2) the need to protect defendants from being sentenced on the basis of “misinformation of a constitutional magnitude.” Though the FDPA states that the Federal Rules of Evidence do not apply at capital sentencing, it also provides that a defendant may rebut any information received at a hearing and must be given a fair opportunity to present argument as to the adequacy of the information presented to establish the existence of any aggravating or mitigating factor. 18 U.S.C. § 3593(c).

Additionally, under the FDPA a sentencing judge may exclude information if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. e. Conclusion Based on the foregoing, the principles underlying Williams are relevant, persuasive, and ultimately fatal to Fields’s Confrontation Clause challenge.

Given the particular importance of individualized sentences in capital eases, we will not “freez[e] the evidential procedure of sentencing in the mold of trial procedure,” Williams, 337 U.S. at 251, 69 S.Ct. 1079, where, as here, challenged testimony is relevant only to a sentencing authority’s selection decision. The district court did not err in admitting the challenged statements. £.

ALLEN CHARGE About five hours after sentencing deliberations began, the jury sent a note asking “[i]f we cannot come to a unanimous vote on either death or life imprisonment without possibility of release, what options does the court have for punishment?” The court responded, without objection, “[y]ou are instructed on page 16 of the Punishment Phase Charge of the Court as follows: ‘If you are unable to unanimously agree on either punishment option, the Court will impose punishment, which cannot be a sentence of death.’ Beyond that, I am unable to answer your question.” Forty minutes later the jury sent a note stating that “[w]e cannot come to a unanimous agreement.” The court responded with the supplemental instruction “[p]lease continue your deliberations.” Id.

Approximately one hour later the jury returned a unanimous sentence of death. Fields claims the supplemental instruction, to which he did not have the opportunity to object in the district court, impermissibly coerced a verdict of death. We review for abuse of discretion supplemental instructions telling a jury to continue deliberating. See United States v. Straach, 987 F.2d 232, 243 & n. 13 (5th Cir.1993). In Allen v.

United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896), the Court stated that “[t]he very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.” If a jury is having difficulty reaching a unanimous verdict, it is permissible to instruct it that in a large proportion of cases absolute certainty could not be expected; that, although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself.

If, on the other hand, the majority were for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority. Id. Any similar supplemental instruction that urges members of a deadlocked jury to forego their differences is now known as an “Allen charge,” or “the dynamite charge, the third degree instruction, the shotgun instruction, or the nitroglycerin charge.” United States v. Bailey, 468 F.2d 652, 666 (5th Cir.1972). This “standard supplemental instruction has been well-received by the nation’s trial court judges.

The charge is used precisely because it works, because it can blast a verdict out of a jury otherwise unable to agree that a person is guilty.” Id. Fields contends that the instruction “[pjlease continue your deliberations” is impermissible because it contained none of the protective language of the traditional Allen charge, telling jurors not to forego their conscientiously-held views. The government contends, to the contrary, that the supplemental instruction is permissible because it contains none of the “dynamite” language of the traditional Allen charge, urging minority jurors to reconsider their views.

In the absence of “dynamite” language, the government asserts, protective language is unnecessary. We “scrutinize the Allen charge for compliance with two requirements: (1) the semantic deviation from approved Allen charges cannot be so prejudicial to the defendant as to require reversal, and (2) the circumstances surrounding the giving of an approved Allen charge must not be coercive.” United States v. Lindell, 881 F.2d 1313, 1321 (5th Cir.1989) (internal citations and quotations omitted).

Our decision in Straach forecloses Fields’s argument that the variation on the Allen charge was unfairly prejudicial and coercive. In Straach we considered the following charge given to a deadlocked jury: “ ‘Considering the length of the trial and the amount of the evidence to be considered, the Court requests that you continue your deliberations in an effort to reach a verdict on all counts.’ ” 987 F.2d at 243. Finding no abuse of discretion, we stated that [t]he note did not coerce the minority jury members into agreement with the majority, or set a time limit on deliberations.

The note expressed no opinion as to what kind of verdict the court preferred .... Of course, the phrase “considering the length of the trial and the amount of the evidence to be considered” might have been read by a juror to mean that the result should be obvious to all jurors upon due consideration of the evidence. However, it remains difficult to construe the note as coercive or as favoring a particular verdict, insofar as it simply urged that “an effort” be made to reach a unanimous verdict.

Thus, even if the note’s language deviated in some respects from that of previously approved Allen charges, it was acceptable. Id. (emphasis added). The instruction here, similar to the one in Straach, is arguably even less problematic than the one upheld there, because the instant instruction contains no language in any way suggesting that “the result should be obvious.” Fields’s attempt to distinguish Straach on the ground that the supplemental instruction in this case told jurors to “keep deliberating,” without any language indicating that only “an effort” need be made, is unpersuasive.

Without setting any time limit on deliberations or indicating that a verdict must be reached, the idea that only “an effort” is required is implicit in the simple instruction to “continue deliberations,” particularly considering that the jury had been deliberating for only six hours when the instruction was given. Finally, contrary to Fields’s suggestion, the fact that the jury handed down a unanimous sentence of death approximately one hour after receiving the supplemental instruction does not indicate that the instruction was coercive. In Montoya v.

Scott, 65 F.3d 405, 409-10 (5th Cir.1995), we found no coercion even where the jury returned its verdict within forty minutes of receiving the challenged supplemental instruction. On the basis of Straach, the district court did not abuse its discretion in instructing the jury to continue its deliberations. 3.

GOVERNMENT’S CLOSING ARGUMENT In the government’s closing argument at sentencing, the prosecutor employed a televisual “picture in picture” metaphor, telling the jury to imagine that Fields’s activities before, during, and after Coleman’s murder were playing on one screen, while Coleman’s activities before and at the time of her murder were playing on the other. Fields did not object to the manner or content of the prosecutor’s discussion. He assei'ts, for the first time on appeal, that the district court violated his due process and Eighth Amendment rights by allowing the government to use this metaphor.

Additionally, he argues that the government’s use of the metaphor resulted in a sentence based in part on “passion, prejudice, or other arbitrary factor,” in violation of 18 U.S.C. § 3595(c)(2)(A). “As a general rule, constitutional and other legal questions are reviewed de novo.” United States v. Delgado-Nunez, 295 F.3d 494, 496 (5th Cir.2002) (internal citations and quotations omitted). Claims of error not preserved at trial, however, are reviewed for plain error only. Fed.R.CRIm.P. 52(b).

Fields claims that comparative worth arguments that encourage the jury to compare the value of the victim’s life with the defendant’s are impermissible under Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). In Payne, however, the Court held only that the Eighth Amendment does not erect a per se bar to victim impact evidence and that such evidence is admissible unless it is “so unduly prejudicial that it renders the trial fundamentally unfair.” Id. at 825, 111 S.Ct. 2597.

With regard to comparative worth arguments, the Court stated only that the “concern ... that the admission of victim impact evidence permits a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy” is largely unwarranted, because victim impact evidence is rarely offered for such a purpose. Id. at 823, 111 S.Ct. 2597. Thus, to the extent that the Court expressed disapproval of comparative worth arguments, it did so only with regard to victim-to-victim comparisons, not victim-to-defendant comparisons.

Indeed, in Humphries v.

Ozmint, 397 F.3d 206, 224 n. 8 (4th Cir.), cert. denied, — U.S. -, 126 S.Ct. 128, 163 L.Ed.2d 133 (2005), the court noted that Payne does not foreclose victim-defendant comparisons; it suggested that “[a] victim-to-victim comparison is more pernicious than a victim-to-defendant comparison because, not only does it invite a commentary on collateral evidence not properly before the jury (the worthiness of other members (victims) of society), it does not counteract the defendant’s mitigating evidence, which was one of the main goals of Payne.” Given that victim impact evidence and evidence of a defendant’s character (both positive and negative) are admissible at capital sentencing, it is difficult to discern how the prosecutor’s use of the picture-in-picture metaphor violated Fields’s constitutional and/or statutory rights.

The purpose of the metaphor, aside from establishing a chronology of events, was to highlight the nonstatutory aggravating factors the government was trying (and is permitted) to establish: that Coleman was the mother of a newborn who needed her attention and that Fields is a consistently violent man who cruelly took her life away. Accordingly, there is no error, let alone plain error, in allowing the government to present its closing argument as it did. Í.

EXPERT TESTIMONY ON FUTURE DANGEROUSNESS Fields claims that introducing certain expert psychiatric testimony on the issue of future dangerousness constituted error. a. Statutory Challenge Fields contends that the district court committed statutory error in admitting the expert testimony of a forensic psychiatrist, Dr. Coons, during the punishment phase of trial. Our review is for abuse of discretion. See Hall, 152 F.3d at 402. i. Background Prior to Dr. Coons testifying, Fields moved to examine him outside the presence of the jury to make a challenge pursuant to Daubert v.

Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The court granted Fields’s motion to examine Dr. Coons regarding the reliability of predicting future dangerousness. However, the court ultimately overruled Fields’s objections and allowed the Government to call Dr. Coons to testify. After Dr. Coons testified regarding his education and experience, the prosecutor posed a hypothetical, which consisted of the facts of the instant capital murder and some of Fields’s background and criminal history. Based upon this hypothetical, the prosecutor asked Dr.

Coons whether such an individual would constitute a future danger to others, including persons in a correctional facility. Dr. Coons responded that there was a “probability of future violence.” ii. Analysis On appeal, Fields makes clear that he is not arguing that psychiatric predictions of future dangerousness during the punishment phase are inadmissible per se. Instead, he states that the “question is whether the evidence before the trial court on this record reflected a showing of reliability sufficient to support the admission as expert opinion of Dr.

Coons’s admittedly subjective and nonscientific prediction about Fields’s future dangerousness.”

(1) Daubert Does Not Apply We first address the argument that standards governing the admissibility of expert evidence at trial should also govern, either strictly or loosely, at capital sentencing. Federal Rule of Evidence 702 provides that expert evidence is admissible if, inter alia, it “is the product of reliable principles and methods” that are applied “reliably to the facts of the case.” In Daubert, the Supreme Court held that Rule 702 superseded the requirement of general acceptance for admission of scientific expert testimony.

See 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. “Under Daubert, the district court conducts a ‘preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.’ ” United States v. Norris, 217 F.3d 262, 269 (5th Cir.2000) (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786) (also citing Fed.R.Evid. 702). Daubert “provides an illustrative list of factors that may aid a court in evaluating reliability.” Mathis v. Exxon, 302 F.3d 448, 460 (5th Cir.2002).

The amicus curiae in this case, the American Psychological Association, urges that we formally adopt the Daubert reliability factors for determining the admissibility of expert evidence in federal death penalty sentencing hearings. Similarly, Fields argues that a district court must apply Daubert or conduct a quasi -Daubert inquiry when deciding whether to admit proffered expert testimony at the punishment phase of a federal capital murder trial.

Fields contends that although the Daubert test “may not apply by its own terms under the FDPA, ... the same principles necessarily inform the inquiry whether proffered evidence meets the applicable statutory requirements, as well as the overarching constitutional command of ‘heightened reliability.’ ” We reject both positions. No Circuit that we are aware of has applied Daubert to sentencing. Moreover, as Fields acknowledges, the FDPA provides that evidence may be admitted “regardless of its admissibility under the rules governing admission of evidence at criminal trials.” 18 U.S.C. § 3593(c) (emphasis added).

The FDPA by its terms does not fully implement the Federal Rules of Evidence at the punishment phase. Since Daubert’s holding was based on the Federal Rules of Evidence, it is not directly applicable. That does not entirely answer the question as to whether some qnasi-Daubert inquiry is required to satisfy the FDPA. Fields argues that other parts of the FDPA should inform our inquiry, specifically pointing to

section 3593(

c) that provides that Dr. Coons’s testimony may be excluded if Fields has shown that its “probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” We are somewhat sympathetic to the argument, but ultimately cannot read a provision into the FDPA that evaluating the probative value of expert testimony for sentencing purposes requires a form of Daubert hearing. Fields cannot point us to where such a requirement appears, even implicitly, in the text, history or logic of the FDPA.

His statutory argument is unavailing and is better couched as a constitutional claim based in the Eighth and Fifth Amendments. Unfortunately for Fields, that constitutional argument is foreclosed and it is beyond our power to revisit it. See

Part II.A.2.b.

(2) Barefoot v. Estelle’s Logic Undermines Fields’s General Reliability Argument Fields also argues more generally under

section 3593(

c) that, if Dr. Coons’s testimony is shown to be unreliable, the “evidence cannot assist the jury as it is plainly not ‘probative’ of anything.” We are not persuaded by this argument. “The Federal Death Penalty Act ... erects very low barriers to the admission of evidence at capital sentencing hearings. Since the need to regulate the scope of testimony is less at the penalty phase than at the guilt phase of trial, parties may present evidence ‘as to any matter relevant to the sentence.’ ” United States v. Lee, 274 F.3d 485, 494 (8th Cir.2001) (quoting 18 U.S.C. § 3593(c)).

As noted above, the sole statutory restriction is that evidence may be excluded if it is more prejudicial than probative. The seminal case regarding whether expert testimony is reliable and should be allowed with respect to future dangerousness predictions during the punishment phase of a capital murder trial is Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Although Barefoot involved a constitutional challenge on collateral review and thus is not technically controlling, the Supreme Court’s reasoning certainly must inform our analysis of this related issue.

Ultimately, Barefoot’s sweeping logic requires us to reject Fields’s general reliability argument. In Barefoot, the petitioner argued that the testimony of two psychiatrists regarding his future dangerousness during the punishment phase of his state capital murder trial was unconstitutional. Barefoot broadly argued that psychiatrists (1) were incompetent to predict future dangerousness to an acceptable degree of reliability and (2) should not be permitted to testify regarding future dangerousness in response to a hypothetical or without examining the defendant. Id. at 896, 103 S.Ct. 3383.

He also argued that his death sentence should be set aside because the testimony was unreliable under the particular circumstances of his case. The Supreme Court rejected all his arguments. Id. With respect to the argument that no psychiatrist should testify as to the future dangerousness of a defendant, the Supreme Court explained that such a rule “is contrary to our cases.” Id.

Because predicting future dangerousness “is a constitutionally acceptable criterion for imposing the death penalty,” and it is “not impossible for even a lay person sensibly to arrive at that conclusion, it makes little sense, if any, to submit that psychiatrists, out of the entire universe of persons who might have an opinion on the issue, would know so little about the subject that they should not be permitted to testify.” Id. at 896-97, 103 S.Ct. 3383 (citing Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976)); see also Estelle v.

Smith, 451 U.S. at 473, 101 S.Ct. 1866 (reiterating the validity of Jurek and in “no sense disapproving the use of psychiatric testimony bearing on the issue of future dangerousness”). Additionally, the Court reasoned that, to accept Barefoot’s argument that expert testimony predicting future dangerousness “is far too unreliable to be admissible would immediately call into question those other contexts in which predictions of future behavior are constantly made.” Barefoot, 463 U.S. at 898, 103 S.Ct. 3383; see, e.g., O’Connor v.

Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (explaining that expert psychiatrists and psychologists interpret facts that determine whether an individual is dangerous to himself or others and in need of civil commitment). The Court further explained that expert testimony regarding future dangerousness “may be countered not only as erroneous in a particular case but also as generally so unreliable that it should be ignored.” Barefoot, 463 U.S. at 898, 103 S.Ct. 3383.

Similarly, the Barefoot Court refused to accept the American Psychiatric Association’s position in its amicus brief that such expert testimony should be barred as unreliable because it was in error “most of the time.” Id. at 901, 103 S.Ct. 3383. Noting that it had rejected the same view in Estelle v. Smith, the Court was “not persuaded that such testimony is almost entirely unreliable and that the fact-finder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings.” Id. at 899, 103 S.Ct. 3383.

The Supreme Court also rejected Barefoot’s argument that future dangerousness testimony should be based upon personal examination rather than hypothetieals. The Court recognized that expert testimony, including responses to hypothetieals, was routinely admitted if it assisted the factfinder. Id. at 903, 103 S.Ct. 3383. It further observed that neither the extant Federal Rules of Evidence nor state law lent support to the argument that the use of hypothetieals was unconstitutional. Id. at 904-05, 103 S.Ct. 3383. Finally, Barefoot asserted that the use of hypothetieals in his case violated due process of law.

Id. at 904, 103 S.Ct. 3383. The Supreme Court summarily found no constitutional violation. The Supreme Court stated that “to agree with petitioner’s basic position would seriously undermine and in effect overrule Jurek,” and it was not inclined to do so. Id. at 906, 103 S.Ct. 3383 (emphasis added). As previously set forth, although we recognize that Barefoot involved a constitutional challenge, its reasoning informs us in assessing the instant case. Indeed, Fields’s statutory argument is laced with references to the heightened reliability requirement under the Eighth Amendment.

In addition, the Barefoot Court’s pragmatic concerns about rejecting future dangerousness testimony apply equally here. Furthermore, the arguments urged today — though framed formally in statutory terms- — are similar in substance to the ones rejected in Barefoot. For example, the amicus in Barefoot, like the amicus here, argued that the future dangerousness methods in issue could be in error most of the time. Likewise, both Fields and Barefoot challenged the experts’ testimony based upon the failure to personally examine the defendant and the use of hypothetieals. The logic of Barefoot meets these challenges.

In the instant case, Dr. Coons’s testimony was probative because Fields’s jury was required to make an assessment of future dangerousness and because the jury could benefit from the opinion of a psychological expert on that matter. Moreover, as Barefoot noted, the adversarial system reduces any prejudicial unreliability in future dangerousness expert testimony because it can expose the flaws in such testimony. For these reasons, we reject the claim that Dr. Coons’s testimony was so unreliable that the district court abused its discretion by admitting it. b.

Constitutional Challenge Fields also claims that the admission of Dr. Coons’s testimony regarding future dangerousness during the punishment phase violated his rights under the Eighth and Fifth Amendments. Barefoot forecloses this claim. As to Fields’s argument that Barefoot should be revisited, it is the Supreme Court’s prerogative, not ours, to consider revisiting its precedent. See, e.g., Rodriguez de Quijas v. Shearson/Am. Express, 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). 5.

PROOF BEYOND A REASONABLE DOUBT AND THE WEIGHING PROCESS In Fields’s final claim of sentencing error, he seeks to extend the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Specifically, he argues that the FDPA violates the Sixth Amendment, as construed in Ring, because it does not require the jury to apply the reasonable doubt standard in deciding whether the aggravating factors outweigh the miti-gators. In Ring, the Supreme Court applied Ap-prendi v. New Jersey to capital cases.

It reiterated, “If [Congress] makes an increase in a defendant’s authorized punishment contingent on [a] finding of a fact, that fact — no matter how [Congress] labels it — must be found by a jury beyond a reasonable doubt.” 536 U.S. at 602, 122 S.Ct. 2428 (citing Apprendi v. New Jersey, 530 U.S. 466, 482-83, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Contrary to Fields’s contention, this rule does not require the jury to apply the reasonable doubt standard during the weighing process. The Apprendi/Ring rule does not extend to the ultimate decision whether to impose the death penalty.

Capital defendants have no constitutional right to a jury at sentencing. See Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (plurality opinion). Indeed, the Supreme Court has explicitly held that judges may do the weighing of aggravating and mitigating circumstances consistent with the Constitution. See Clemons v. Mississippi, 494 U.S. 738, 745, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). The Court’s Apprendi line of cases reveals that the reasonable doubt standard is appurtenant to the right to jury trial.

Since the Constitution does not require a jury to do the weighing, we cannot conclude that the showing required must be proof beyond a reasonable doubt. Moreover, the Apprendi/Ring rule should not apply here because the jury’s decision that the aggravating factors outweigh the mitigating factors is not a finding of fact. Instead, it is a “highly subjective,” “largely moral judgment” “regarding the punishment that a particular person deserves Caldwell v. Mississippi, 472 U.S. 320, 340 n. 7, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

In death cases, “the sentence imposed at the penalty stage ... reflects] a reasoned moral response to the defendant’s background, character, and crime.” Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (emphasis in original). The Appren-di/Ring rule applies by its terms only to findings of fact, not to moral judgments. See Ring, 536 U.S. at 602, 122 S.Ct. 2428. The Supreme Court’s reasoning in Kansas v. Marsh, — U.S. -, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006), supports our conclusion. In Marsh, the Court construed a previous decision, Walton v.

Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), as holding “that a state death penalty statute may place the burden on the defendant to prove that mitigating circumstances outweigh aggravating circumstances.” Marsh, 126 S.Ct. at 2524. Additionally, in a concurring opinion in Marsh, Justice Scalia recognized that the Constitution does not require a reasonable doubt standard as to the weighing process: “[T]he State could, as Marsh freely admits, [adopt a] scheme requiring the State to prove by a mere preponderance of the evidence that the aggravators outweigh the mitigators.” Id. at 2532 n. 2.

No member of the Marsh Court disagreed. Accordingly, we hold that the Sixth Amendment does not require a jury to be instructed that it must find that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt. B. CLAIMS OF TRIAL ERROR We first address Fields’s arguments that the district court committed error that requires reversal of his convictions. Ultimately, we affirm each conviction. 1.

FAILURE TO CONSULT PUBLIC DEFENDER ON APPOINTED COUNSEL Fields’s first guilt-phase claim is that the district court erred by failing to secure the advice of the Federal Public Defender (“FPD”) before appointing him capital counsel. The appointment of counsel to represent indigent defendants in capital cases is governed by 18 U.S.C. § 3005. It provides that those charged with federal capital offenses are entitled to two lawyers, one of whom “shall be learned in the law applicable to capital cases.”

Section 3005 further requires: “In assigning counsel under this section, the court shall consider the recommendation of the Federal Public Defender organization, or, if no such organization exists in the district, of the Administrative Office of the United States Courts.” a.Background After Fields was charged with a capital offense, his attorney, Scott Peterson, filed a motion pursuant to

section 3005 asking the court to appoint a second attorney learned in the law of capital cases. Attorney Peterson advised the court that Rob Swanton had agreed to be co-counsel. The court stated that Swanton was “more than acceptable” because he was “an excellent, excellent attorney.” Two days later, the court entered an order formally appointing Swanton as lead counsel. It found, “Mr.

Swanton is learned in the law applicable to capital cases and is qualified to appear as counsel because of his distinguished prior experience in the trial of death-penalty cases.” Fields made no objection either to the court’s decision to appoint Swanton or to its failure to consult the FPD before so deciding. After trial, Fields moved to supplement the appellate record with the affidavit of Lucien Campbell, the Federal Public Defender for the Western District of Texas. In the affidavit, Campbell stated that the district court did not request his recommendation for the appointment of counsel.

The court granted the motion to supplement and acknowledged on the record that it did not confer with the FPD. It also stated, “Scott Peterson and Rob Swanton were appointed to represent Mr. Fields because of their years of experience in the criminal defense field, including numerous capital cases. Additionally, Mr. Peterson was the Defendant’s attorney of record on the original federal gun case for which he was in jail at the time of his escape.” b.Standard of Review Fields contends that we should review de novo even though he raises the court’s noncompliance with

section 3005 for the first time on appeal. However, a contemporaneous objection ordinarily is required to preserve error. See United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). None of Fields’s arguments provides justification for us to deviate from that general rule.

Section 3005 came into play, at the earliest, only after the Government charged Fields with a capital offense. By that time, Fields already was represented by counsel, Attorney Peterson. Fields had ample opportunity to object below through his attorney on the grounds he now asserts. Since he failed to do so, we review his claim for plain error. Fields can only prevail if he shows “that (1) there is an error, and that the error (2) is plain, (3) affects substantial rights, and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” See United States v.

Garza, 429 F.3d 165, 169 (5th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1444, 164 L.Ed.2d 143 (2006). c.Analysis Assuming arguendo that Fields’s claim would succeed on the first two prongs of plain-error review, it fails on the third prong. Fields cannot show prejudice. He acknowledges that the purpose of securing the FPD’s recommendation is to ensure the high-quality representation necessary in capital eases. See United States v. Shepherd, 576 F.2d 719, 728-29 (7th Cir.1978).

He does not argue, however, that the district court erred in determining that Swanton was an “excellent” attorney who was learned in the law of capital defense (indeed “distinguished”) or that the court incorrectly found that both his attorneys, Swanton and Peterson, had each tried numerous capital eases through years of experience in the field of criminal defense. Thus, Fields cannot show that the error affected his substantial rights.

Unable to show actual prejudice, Fields argues that no such showing should be required due to the “fundamentally structural character of the error.” The Supreme Court has indicated that the structural error doctrine applies only in a “very limited class of cases.” Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Only errors that “undermin[e] the fairness of a criminal proceeding as a whole ... require[ ] reversal without regard to the mistake’s effect on the proceeding.” See United States v. Dominguez Benitez, 542 U.S. 74, 81, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

The statutory error asserted here is not so fundamental. Additionally, there is no “strong support” in the operable statute to suggest an “implied repeal” of Federal Rule of Criminal Procedure 52, which requires us to disregard errors that do not affect substantial rights. See Zedner v. United States, — U.S. -, 126 S.Ct. 1976, 1989, 164 L.Ed.2d 749 (2006). In support of his argument that the error here is structural, Fields cites a line of Fourth Circuit cases. See, e.g., United States v. Williams, 544 F.2d 1215, 1218 (4th Cir.1976) (holding that failure to appoint second counsel under

section 3005 “gives rise to an irrebuttable presumption of prejudice”). This line of cases is inap-posite. They all involve district courts’ failures to appoint any second counsel. Such an error is considerably more serious than what occurred here. Moreover, the Third Circuit has explicitly rejected the Fourth Circuit’s presumed-prejudice approach to a court’s failure to appoint second counsel. See United States v. Casseus, 282 F.3d 253, 256 n. 1 (3d Cir.2002). Without taking sides in this Circuit split, we decline to extend the Fourth Circuit’s approach in the way Fields suggests.

Accordingly, we reject Fields’s claim that failing to consult the FPD before appointing capital counsel is structural error or that prejudice must be presumed. Since Fields cannot show prejudice, his claim fails. 2. CONFLICT OF INTEREST/WAIVER OF RIGHT TO COUNSEL Fields makes two related arguments surrounding his trial attorney’s alleged conflict of interest. He argues, first, that the district court’s refusal to appoint un-conflicted substitute counsel rendered his waiver of counsel involuntary. Second, he contends that the district court neglected its “duty to inquire” about an apparent conflict of interest.

See Cuyler v. Sullivan, 446 U.S. 335, 347-48, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The Government acknowledges that our review of these issues is de novo. See United States v. Jones, 421 F.3d 359, 362-63 (5th Cir.2005). a. Background As the trial date approached, Fields filed a request asking the trial court to appoint new counsel. He represented that “if the Court d[id] not allow him new trial counsel, that he intended] to represent himself.” Fields had threatened several times to invoke his right to represent himself but ultimately withdrew those motions.

The district court held an ex parte hearing on Fields’s latest motion. At the hearing, Fields’s lawyers informed the court that they had tried in vain to persuade Fields that going pro se would be a grave mistake. Additionally, Fields’s lead attorney, Swanton, advised the court of “one other issue that’s come up” concerning his co-counsel, Peterson: Back in 1987 ... [,] there is a small entry in [Fields’s] juvenile record that indicates Mr. Peterson[,] when he was working for the McLennan County district attorney’s office[,] either authorized prosecution of Mr.

Fields for a — if I remember it correctly, it was a burglary of a habitation case. I’m not sure that Mr. Peterson was actually directly involved in the prosecution. Frankly, Mr. Peterson cannot remember being involved in that, and it simply may be that somebody from the police or probation department called somebody at the D.A.’s office and asked for permission to file a petition. We have talked to Mr. Fields about that and while we don’t really perceive it as a conflict, Mr. Peterson has certainly worked diligently on this case and that has never been an issue through the two years of representation.

We talked to Mr. Fields about that and let him know that somebody somewhere down the line may see that as a perceived conflict of interest and that if he had any concerns about that, he should talk with the Court about it. We’d certainly be happy to offer information or testimony from Mr. Peterson if you thought that was necessary as to what he thinks his involvement was in that prosecution and put something on the record in that regard.

The entry to which Swanton referred states, “On 3-20-87 Scott Peterson, Assistant District Attorney, authorized the filing of a delinquency action against Sherman.” Fields’s juvenile record does not reflect any further involvement in the action by Peterson. After Swanton’s representation, the court allowed Fields to speak about his request to replace his attorneys. Fields expressed generalized “suspicio[n]s” that his attorneys were in league with the Government.

He voiced disagreement with his attorneys’ strategy, indicating that they were pursuing mitigation for the penalty phase “when I repeatedly profess my innocence.” “Their strategy guarantees me the death penalty.” At a subsequent hearing, Fields expressed generieally, “[M]y attorneys and I have a major conflict of interest ....” Fields never mentioned any specific concern that Peterson had authorized delinquency proceedings against him as a twelve-year-old. The district court did not seek further information concerning the purported conflict.

Ultimately, the court denied Fields’s request for new counsel and permitted him to proceed pro se. b. Analysis i. Voluntariness of Waiver

(1) The Waiver Was Voluntary If There Was No Conflict of Interest A court violates the Sixth Amendment if it allows a defendant to represent himself without first obtaining a valid waiver of counsel. See, e.g., United States v. Medina, 161 F.3d 867, 870 (5th Cir.1998). A defendant cannot be forced to choose between conflicted counsel and no counsel at all, and any waiver of counsel that results from those circumstances is not valid. See Dunn v. Johnson, 162 F.3d 302, 307 (5th Cir.1998). However, indigent defendants have no right to appointed counsel of their choice. See, e.g., United States v.

Breeland, 53 F.3d 100, 106 n. 11 (5th Cir.1995). Rather, “[a] defendant’s refusal without good cause to proceed with able appointed counsel constitutes a voluntary waiver of that right.” Richardson v. Lucas, 741 F.2d 753, 757 (5th Cir.1984). “The question [of voluntariness] therefore boils down to whether [Fields] demonstrated good cause for the substitution of assigned counsel.” McKee v. Harris, 649 F.2d 927, 931 (2d Cir.1981). One form of good cause for new counsel — the only one relevant here— is to show that counsel labored under a conflict of interest. See, e.g., United States v.

Young, 482 F.2d 993, 995 (5th Cir.1973).

(2) Insignificant or Insubstantial Conflicts Do Not Warrant Substitute Counsel A district court need not appoint substitute counsel on conflict-of-interest grounds if it is “satisfied that any conflict does not risk compromising the defendant’s representation.” United States v. Solomon, 42 Fed.Appx. 88, 91 (10th Cir.2002) (unpublished). As the Eighth Circuit has held, a defendant is only entitled to substitute counsel if the court finds significant interference with an existing attorney’s “ability to provide zealous representation.” See United States v.

Boone, 437 F.3d 829, 839 (8th Cir.), cert. denied, — U.S. -, 127 S.Ct. 172, 166 L.Ed.2d 123 (2006). This follows logically from the proposition that defendants are not entitled to appointed counsel of their choice. That rule would be rendered a nullity if insubstantial complaints entitled defendants to substitute counsel. Indeed, the only precedent we have found touching the specific issue sub judi-ce, Dunn v. Johnson, indicates that the conflict asserted must be significant to warrant substitute counsel. See 162 F.3d at 307.

Dunn argued that his waiver of counsel was involuntary because his appointed attorneys had a conflict of interest. In support of this claim, Dunn asserted that, prior to his trial, he had filed a malpractice suit against his attorneys. We did not recognize this as a significant enough conflict of interest to render Dunn’s waiver involuntary, pointing out that the “malpractice suit ... had been dismissed as frivolous three years before his second trial.” Id.

(3) The Conflict Alleged Was Not Serious Enough to Entitle Fields to New Counsel Applying these principles to the case at bar, the supposed conflict of interest was not sufficiently substa

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