UNITED STATES of America, Plaintiff-Appellee, v. Daryl LAWRENCE, Defendant-Appellant, 735 F.3d 385

OPINION McKEAGUE, Circuit Judge. Daryl Lawrence appeals his convictions and sentences for armed bank robbery, attempted armed bank robbery, murder, and firearms offenses. Most of the twenty-four asserted claims of error relate to proceedings on the two death-eligible offenses and the resultant sentence of death. Despite vigorous and able advocacy by Lawrence’s counsel, we find no error in the proceedings below and, for the reasons that follow, affirm the judgment of the district court.

I The charges against Lawrence arose from four bank robberies committed in central Ohio during January, August, and September 2004, and January 2005. During the last of these robberies, an attempted robbery on January 6, 2005, Lawrence shot and killed Columbus Police Officer Bryan Hurst. Officer Hurst had returned fire, however, and Lawrence was injured. Lawrence aborted the robbery and fled. He was arrested within days, whereupon he confessed to having committed all four robberies.

An eight-count indictment was returned and filed in the United States District Court for the Southern District of Ohio on January 20, 2005. The' indictment charged Lawrence with three counts of armed robbery, in violation of 18 U.S.C. § 2113(

a) and (d); two counts of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); one count of brandishing and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(l)(A)(ii) and (iii); one count of attempted bank robbery resulting in the killing of Officer Hurst, in violation of 18 U.S.C. § 2113(a), (

d) and (e); and one count of using a firearm during and in relation to a crime of violence to commit murder with malice aforethought, in violation of 18 U.S.C. § 924(

c) and (j). The latter two counts, Counts Seven and Eight, charged death-eligible offenses, violations of 18 U.S.C. § 2113(

e) and 18 U.S.C. § 924(j)(l), respectively. The indictment further alleged that Lawrence was eligible to be punished by death under the Federal Death Penalty Act, 18 U.S.C. § 3591(a); and charged two statutory aggravating factors in connection with the murder under 18 U.S.C. § 3592(c), i.e., that Lawrence knowingly created a grave risk of death to one or more persons in addition to the victim, and that Lawrence committed the murder in expectation of pecuniary gain. Trial commenced with jury selection proceedings on February 13, 2006.

Ten trial days later, the jury began and completed its deliberations in the guilt phase, finding Lawrence guilty of all eight charges on February 28, 2006. The sentencing phase culminated with the jury’s verdict on March 10, 2006, recommending a sentence of life imprisonment without parole on Count Seven and a sentence of death on Count Eight. On August 10, 2006, the district court sentenced Lawrence to a total of 781 months’ imprisonment on Counts One through Six, to be served consecutively to the life term imposed for Count Seven, and imposed the death penalty for Count Eight.

Lawrence moved for a new trial, claiming juror bias, double jeopardy, improper jury instructions, and inconsistent sentencing verdicts on Counts Seven and Eight. The district court vacated the jury’s death verdict on Count Eight and ordered a new sentencing hearing. United States v. Lawrence, 477 F.Supp.2d 864, 867 (S.D.Ohio 2006). The United States appealed the district court’s decision and we reversed. We held that the ■ sentencing verdicts were not inconsistent or irrational and reinstated the sentence of death imposed by the district court on Count Eight. United States v.

Lawrence, 555 F.3d 254, 256 (6th Cir.2009). Now on direct appeal, Lawrence raises twenty-four claims of error, listed here and addressed below in the order he presents them: 1. The jury’s sentencing verdicts on Counts Seven and Eight were defective for lack of express certification that each juror would have made the same sentencing recommendation regardless of the race of Lawrence or the murder victim. 2. The district court erred by failing to instruct the jury on Count Eight that they had the option of recommending a sentence of imprisonment to a term of years less than life. 3.

The district court erred by admitting improper and excessive victim-impact evidence in the sentencing phase. 4. The district court abused its discretion by denying Lawrence his right to allocution before the jury during the sentencing phase. 5. The district court erred by imposing a sentence of death under 18 U.S.C. § 924(

c) and (

j) where a greater minimum sentence, life imprisonment, was prescribed by another provision of law, 18 U.S.C. § 2113(e). 6. Where six jurors found that life imprisonment was appropriate and sufficient, the death sentence was imposed arbitrarily. 7. The district court erred by refusing to strike the “pecuniary gain” statutory aggravating factor. 8. The district court abused its discretion by allowing the government to introduce “lifestyle evidence” to prove the “pecuniary gain” aggravating factor. 9. There was insufficient evidence to support a reasonable jury finding that Lawrence killed for pecuniary gain. 10.

The district court erred by refusing to strike the “grave risk of death” statutory aggravating factor. 11. The district court erred by refusing to strike the non-statutory aggravating factors as the product of an unconstitutional delegation of power. 12. The non-statutory aggravating factors should have been struck because the government failed to charge them in the indictment. 13. The jury’s determination that the aggravating factors outweighed the mitigating factors is not supported by sufficient evidence. 14.

Prosecution and sentencing under Counts Seven and Eight based on the nonstatutory aggravating factor “contemporaneous finding of guilt” violated the Double Jeopardy Clause. 15. The district court erred by refusing to instruct the jurors that they had to unanimously agree, beyond a reasonable doubt, that the aggravating factors sufficiently outweighed the mitigating factors before selecting the death sentence. 16. The district court erred by failing to instruct the jury that “a solitary juror may prevent a sentence of death.” 17.

The district court erred by failing to give an adequate “malice aforethought” instruction. 18. Prosecutorial misconduct during closing argument of the penalty phase denied Lawrence a fair trial. 19. The district court erred by denying Lawrence’s motion to suppress statements. 20. Prosecution in federal court and imposition of the death sentence were tainted by racial bias, in violation of Lawrence’s constitutional rights. 21. The district court erred by allowing multiple “victims” to be present during the sentencing hearing. 22. The district court erred by failing to investigate evidence of juror misconduct. 23.

The district court erred by allowing the government to peremptorily excuse prospective jurors because of their race. 24. The district court erred by failing to remove for cause prospective jurors whose impartiality was demonstrably compromised. II 1.

Omission of Required Jury-Nondiscrimination Certification Lawrence contends his sentencing was marred by “structural error” because the jurors failed to certify, in conjunction with their sentencing verdicts on Counts Seven and Eight, as required by the Federal Death Penalty Act, that they would have made the same sentencing recommendation irrespective of the race, color, religious beliefs, national origin, or sex of Lawrence or the victim, Bryan Hurst. Lawrence is African American; Hurst was white. All twelve jurors were white.

The Federal Death Penalty Act requires the district court to instruct the jury that, in considering whether a sentence of death is justified, it shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or of any victim and that the jury is not to recommend a sentence of death unless it has concluded that it would recommend a sentence of death for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or of any victim may be. 18 U.S.C. § 3593(f).

There is no question that the district court complied with this requirement and properly instructed the jury in this regard.

The Act, however, also requires the jury to certify that its decision to impose the death sentence was not discriminatory: The jury, upon return of a finding under subsection (e) [concerning a sentence of death], shall also return to the court a certificate, signed by each juror, that consideration of the race, color, religious beliefs, national origin, or sex of the defendant or any victim was not involved in reaching his or her individual decision and that the individual juror would have made the same recommendation regarding a sentence for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or any victim may be.

Id. (emphasis added). This certification requirement has two components. The certification used by the district court and signed by the jurors included the first component. All of the jurors signed the certification they were provided, certifying that consideration of race, color, religious beliefs, national origin, or sex played no role in their verdicts. The certification form provided to the jurors, however, omitted the second component certifying that the jurors would have made the same recommendation irrespective of the race, color, religious beliefs, national origin, or sex of the defendant or victim.

Lawrence contends this omission is a structural error that requires us to vacate the Count Seven and Count Eight sentences because it “affected the framework within which the trial proceeded” and was not simply an error in the trial process itself. See Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

The government contends that the trial court’s jury instructions included the pertinent language from § 3593(f), that the jurors’ certification substantially included the required language, that Lawrence did not object to the omission at trial, and that the omission was not a structural error. Generally, where the defendant failed to object to an error at trial, including instructional error, review on appeal is for plain error only. See Fed.R.Crim.P. 30(d), 52(b); Louis Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).

We may address the objection in the first instance and grant relief under plain-error review only if four requirements are met: (1) there must be a legal error (objection to which was not affirmatively waived); (2) the error must be clear; (3) the error must have affected the appellant’s substantial rights in that it affected the outcome of the district court proceedings; and (4) the error must have seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Puckett v.

United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). “Meeting all four prongs is difficult, ‘as it should be.’ ” Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). However, an error that is “structural” may be cognizable despite the lack of a third-prong showing that it actually prejudiced the appellant or affected the outcome of the proceedings. United States v. Marcus, 560 U.S. 258, 130 S.Ct. 2159, 2164-65, 176 L.Ed.2d 1012 (2010); United States v. Barnett, 398 F.3d 516, 526 (6th Cir.2005).

A structural defect is a “ ‘defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.’” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting Fulminante, 499 U.S. at 310, 111 S.Ct. 1246); see also Ruelas v. Wolfenbarger, 580 F.3d 403, 410 (6th Cir.2009). “[M]ost constitutional errors can be harmless.” Fulminante, 499 U.S. at 306, 111 S.Ct. 1246. In other words, even constitutional errors are disregarded if they are shown not to have affected substantial rights. Id.; Fed.R.Crim.P. 52(a).

This harmless-error doctrine preserves the “ ‘principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.’ ” Fulminante, 499 U.S. at 308, 111 S.Ct. 1246 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)).

Structural defects, on the other hand, are “defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” Id. at 309, 111 S.Ct. 1246. The Supreme Court has found structural errors only in “ ‘a very limited class of cases,’ including: total deprivation of the right to counsel; judicial bias; the unlawful exclusion of grand jurors of defendant’s race; denial of the right to self-representation at trial; the denial of the right to a public trial; and erroneous reasonable-doubt instruction to jury.” Rosencrantz v.

Lafler, 568 F.3d 577, 589 (6th Cir.2009) (quoting Johnson, 520 U.S. at 468-69, 117 S.Ct. 1544); see also Marcus, 130 S.Ct. at 2164-65 (same). There is no dispute that the omission of the second component from the certification form was in violation of 18 U.S.C. § 3593(f); it was a legal error that was “clear.” The first two requirements for plain-error relief are met. As to the third element, Lawrence has not identified how the error affected his substantial rights. Arguing that the certification defect is structural error, he contends that he need not do so.

Lawrence cites no authority specifically holding that lack of strict compliance with the Act’s nondiscrimination certification requirement is structural error. Nor does the omission of the second component of the certification requirement fall within any recognized category of structural error. To the contrary, the certification requirement is complementary and analogous to a jury instruction, and jury instruction errors have generally been deemed non-structural and subject to harmless-error analysis. See Marcus, 130 S.Ct. at 2165. Moreover, the certification is a statutory, not a constitutional, requirement.

Unlike the rights to counsel, an impartial judge, equal protection, self-representation, a public trial, and an accurate reasonable-doubt instruction, the certification requirement is purely a creature of statute. Lawrence’s constitutional rights were not violated when the district court erroneously omitted part of the statutory language from the certification form. Third, the certification requirement comes into play only at the end of the sentencing hearing when the jury is considering whether a sentence of death is justified.

A defect in the form of the certification cannot be deemed to have affected the framework in which the trial proceeded; it affected only the jury’s memorialization of its sentencing decision. Lawrence contends the legislative history demonstrates that Congress deliberately included both components in the certification requirement in order to prevent the influence of racial prejudice in capital sentencing.

He contends the omission of the second component from the certification was no mere technical defect, but directly contravened Congress’s purpose and im-permissibly opened the door to the possibility of racial bias. Citing Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), Lawrence contends the omission of the second § 3593(

f) component is analogous to a trial court’s refusal to question prospective jurors on racial bias in an interracial murder case. In Turner, the court granted relief, despite the absence of evidence of racial bias, because the refusal to explore the racial-bias issue in voir dire was deemed to have created “an unacceptable risk of racial prejudice infecting the capital sentencing proceeding.” Id. at 37, 106 S.Ct. 1683 (plurality opinion) (italics in original). In Turner, however, the Court did not rule that the voir dire error was structural error.

Nor was the Turner Court constrained to apply plain-error review, as the defendant’s objection had been preserved. Thus, although the refusal to ask the requested questions regarding racial bias was held to be error per se, obviating the need to show prejudice, the Court did not have occasion to determine whether the error “seriously affected the fairness, integrity or public reputation of judicial proceedings” as a prerequisite to granting relief.

Most importantly, Turner is further distinguishable in that the impetus for the finding of error per se, an unacceptable risk of racial prejudice infecting the sentencing proceeding, is lacking in this case. Unlike the Turner trial court’s refusal to inquire about racial bias in voir dire, the instant omission of the second component from the jury’s § 3593(

f) certification, substantially duplicative of the first component, can hardly be deemed to have created such an unacceptable risk of racial prejudice. Although the Count Seven and Count Eight certifications were flawed, the omission was substantively harmless. The jury was clearly instructed, in accordance with § 3593(e), that they were prohibited from considering race in their sentencing deliberations. The jury was also correctly instructed that each juror had to be convinced that he or she would have reached the same sentencing decision regardless of race.

We ordinarily presume the jury followed its instructions, and Lawrence has offered nothing to rebut this presumption. See United States v. Harvey, 653 F.3d 388, 396 (6th Cir.2011) (holding that, absent rebuttal, “jurors are presumed to follow instructions”). The record reveals no basis for any conclusion other than that the jurors followed the undisputedly correct instructions they were given. There simply is no reason to conclude that the omission of the second component from the certification forms created an unacceptable risk that racial prejudice infected the verdicts.

We therefore reject Lawrence’s argument that Turner represents sound support for the proposition that the certification defect warrants relief even in the absence of evidence that it affected his substantial rights and seriously affected the integrity of the sentencing proceeding. Lawrence has presented no grounds to hold that the certification defect affected either his. substantial rights or the integrity of the proceedings. He has not satisfied the prerequisites for relief under plain-error review and his first claim of error must be denied.

See Marcus, 130 S.Ct. at 2166 (denying relief under plain-error review — even if error were deemed structural — for lack of showing that error impugned the fairness, integrity, or public reputation of the proceedings). 2. Failure to Instruct on Option of Lesser Sentence on Count Eight Lawrence contends the district court gave an erroneous jury instruction regarding sentencing options for Count Eight.

Count Eight charged that Lawrence committed murder, as defined in 18 U.S.C. § 1111, by unlawfully killing Hurst with malice aforethought in the attempt to perpetrate a robbery, and with use of a firearm, in violation of 18 U.S.C. § 924(c). The penalties for this offense are death, imprisonment for any term of years, or life imprisonment. 18 U.S.C. § 924(j)(l). The penalties for first-degree murder under § 1111 are death or life imprisonment. However, § 924(j)(

l) does not incorporate § llll’s penalty provisions, but only incorporates § llll’s definition of murder. United States v. Ostrander, 411 F.3d 684, 686 (6th Cir.2005). It follows that the penalty options for the Count Eight murder are those prescribed in § 924(j)(l), not those prescribed in § 1111. In addition, the Federal Death Penalty Act authorizes three possible punishments: death, life imprisonment without possibility' of release, or ■ some lesser sentence. 18 U.S.C. § 3593(e). The district court thus should have instructed the jury that it had three sentencing options.

Instead, the court instructed that a sentence of death or life imprisonment without possibility of release were the only sentencing options. This was error. However, Lawrence did not object to this error at trial. Indeed, his proposed instruction included the same penalties for Count Eight as those incorporated into the court’s instruction. We therefore review only for plain error. See Fed.R.Crim.P. 30, 52(b); Louis Jones, 527 U.S. at 389, 119 S.Ct. 2090.

Again, Lawrence has the burden of showing that this clear error adversely affected his substantial rights and, if so, that it seriously affected the integrity or public reputation of the sentencing proceeding. Puckett, 556 U.S. at 135, 129 S.Ct. 1423. This he has not done. The district court’s error in omitting the term-of-years sentencing option under § 924(j)(

l) has not been shown to have affected Lawrence’s substantial rights. To carry his burden in this regard, Lawrence must show there is “a reasonable probability” that, but for the instructional error, the jury’s recommended sentence on Count Eight “would have been different.” Dominguez Benitez, 542 U.S. at 81-82, 124 S.Ct. 2333. Inasmuch as the jury unanimously recommended the death penalty on Count Eight rather than life imprisonment without releasé, there is no likelihood — much less “a reasonable probability” — that it would have opted to sentence Lawrence to a term of years if given the choice.

Lawrence insists that such a conclusion is based on impermissible speculation. However, the notion that the jury would have sentenced Lawrence to a term of years on Count Eight if given the option is not reasonable; it defies all logic and reason. Accordingly, though the district court committed error when it instructed the jury that death and life imprisonment were the only sentencing options on Count Eight, Lawrence has not demonstrated that the error affected his substantial rights. He has therefore not established entitlement to relief under plain-error review. 3.

Admission of Improper Victim-Impact Evidence Lawrence contends the district court erred by permitting improper and excessive use of victim-impact evidence by the government during the sentencing phase. Lawrence contends the evidence of the impact of Hurst’s death went beyond the scope permitted by the Federal Death Penalty Act and the Eighth Amendment because it included inadmissible evidence of the impact on Hurst’s community, coworkers, and friends, as well as cumulative family-impact evidence. Before trial, Lawrence attempted to limit victim-impact evidence.

He moved to strike victim impact as a non-statutory aggravating factor, asked the district court to allow only one adult member of Hurst’s family to testify and to require use of a prepared statement to do so, and objected to the government’s intention to introduce evidence of the impact of Hurst’s death on his friends and the community. The district court denied Lawrence’s motions and objections and directed that the government’s victim-impact witnesses each prepare a written statement and submit them to the district court for review of their admissibility under 18 U.S.C. § 3593(

a) and (c). The district court had the witnesses read their statements verbatim without deviation. At trial, Lawrence raised a general objection to the testimony from Hurst’s family members. Evidentiary rulings are generally reviewed for abuse of discretion. See, e.g., United States v. Boyd, 640 F.3d 657, 668 (6th Cir.2011). “The district court abuses its discretion when it relies on clearly erroneous findings of fact, uses an erroneous legal standard, or improperly applies the law.” United States v. White, 492 F.3d 380, 408 (6th Cir.2007). Constitutional challenges and questions of statutory

interpretation are reviewed de novo. See United States v. Harold Jones, 641 F.3d 706, 713 (6th Cir.2011) (Fifth and Sixth Amendment challenge); United States v. Rodriguez, 581 F.3d 775, 796 (8th Cir.2009) (FDPA). An error of law is an abuse of discretion. Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Under the FDPA, an error requires reversal only if the government cannot establish beyond a reasonable doubt that the error was harmless. 18 U.S.C. § 3595(c)(2)(C); United States v. Lighty, 616 F.3d 321, 363 (4th Cir.2010).

The FDPA describes victim-impact evidence as “factors concerning the effect of the offense on the victim- and the victim’s family.” 18 U.S.C. § 3593(a). The Act permits evidence in the form of testimony, a victim-impact statement, “and any other relevant information.” Id.

The Supreme Court has sanctioned the use of victim-impact evidence in the sentencing phase of a capital trial. “The Eighth Amendment ... permits capital sentencing juries to consider evidence relating to the victim’s personal characteristics and the emotional impact • of the murder on the victim’s family in deciding whether an eligible defendant should receive a death sentence.” Louis Jones, 527 U.S. at 395, 119 S.Ct. 2090. “ ‘[T]he State has a legitimate interest in counteracting the mitigating evidence ... by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.’ ” Payne v.

Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (quoting Booth v. Maryland, 482 U.S. 496, 517, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) (White, J., dissenting)). In order “to assess meaningfully the defendant’s moral culpability and blameworthiness,” the jury should be permitted to consider the specific harm caused by the crime. Id. However, victim-impact evidence can violate a defendant’s due process rights if it is “so unduly prejudicial that it renders the trial fundamentally unfair.” Id. at 825, 111 S.Ct. 2597.

Eight witnesses for the prosecution read statements about Hurst and the impact of his death: his mother, his stepfather, his mother-in-law, his widow, his sister, his brother, his cousin’s husband, and a police officer who served with him. Hurst’s family members described his upbringing, his service in the Marines, his decision to join the Columbus Police Department, and his role as a husband and father. The fellow officer told of his friendship with Hurst and serving with him on the- police force. Several of the witnesses spoke of their emotional responses to Hurst’s death and called him a hero.

Lawrence challenges in particular the district court’s admission of testimony by Hurst’s friend and partner on the police force, Sergeant Donald Oliverio. Testimony by a friend 'and co-worker, Lawrence argues, is beyond the scope permitted under the FDPA and Supreme Court precedent. Courts have interpreted Payne and the FDPA to permit similarly situated witnesses, i.e., family members; friends, and co-workers, to give victim-impact testimony. See United States v. Whitten, 610 F.3d 168, 188-90 (2d Cir.2010); United States v. Bolden, 545 F.3d 609, 626 (8th Cir.2008); United States v.

Barrett, 496 F.3d 1079, 1098-99 (10th Cir.2007); United States v. Nelson, 347 F.3d 701, 712-14 (8th Cir.2003); United States v. Bernard, 299 F.3d 467, 478-80 (5th Cir.2002). Consistent with these authorities, we hold that the victim-impact evidence from Hurst’s family members and fellow police officer was neither improper nor excessive. Accordingly, the district court did not abuse its discretion by admitting it. Lawrence insists that some of the victim-impact evidence clearly exceeded the scope permitted by the FDPA, citing United States v. Fields, 516 F.3d 923, 946-47 (10th Cir.2008).

In Fields, the defendant challenged evidence of the impact of the victim’s death on co-workers and the community. The court was unwilling to approve such evidence to the extent that it involved “impersonal utilitarian considerations,” but found its admission harmless under the circumstances. The only coworker who testified was also a close friend of the victim, his testimony was about the victim and his friendship, and the prosecution did not misuse the evidence in closing. Id. at 947.

The court found that nothing in the victim-impact testimony addressed community impact directly and that the prosecution did not use it as such in its closing argument to the jury. Id. at 948. In this case, as in Fields, the only co-worker who testified was also a close friend of Hurst’s. Sergeant Oliverio testified both about his friendship with Hurst and his own response to Hurst’s death. We find no abuse of discretion in the admission of this evidence. Lawrence maintains that the prosecutor compounded the error by emphasizing the impact of Hurst’s death on his coworkers and the community in closing argument.

Some of government counsel’s closing argument remarks were questionable, suggesting that others, who did not testify, were affected by Hurst’s death. Yet, the impact of Hurst’s death on coworkers and the community stems largely from the nature of his job as a police officer. It was while acting in this capacity that Hurst was killed. For the most part, government counsel made appropriate use of the facts to illustrate and argue that Hurst was “an individual whose death represents a unique loss to society and in particular to his family.” Payne, 501 U.S. at 825, 111 S.Ct. 2597.

Viewed in context, any excess was minimal, its impact insignificant. The evidence of the impact of Hurst’s death on people other than his immediate family was therefore not unduly prejudicial. To the extent any particular testimony by Oliverio or argument by government counsel ought to have been disallowed, its admission was ultimately harmless. 4. Denial of Right to Allocution Lawrence contends the district court wrongly denied him his right to allocution in the sentencing phase of trial.

Lawrence moved the district court for allocution, relying on the Due Process Clause of the Fifth Amendment and Fed.R.Crim.P. 32 (i) (4) (A) (ii). The district court denied the motion, holding, consistent with rulings from the Fourth, Fifth, and Eighth Circuits, that there is no constitutional or statutory right to allocution. Lawrence was free to address the jury under oath and subject to cross-examination, but was not permitted to make an unsworn statement. To complete the record, Lawrence proffered an unsworn written statement that he would have read to the jury had he been permitted to make allocution.

The statement consists of three short paragraphs, expressing Lawrence’s regret and sorrow for having killed Bryan Hurst and asking for mercy so he might maintain a relationship with his children and positively affect others while in prison. We review the decision to exclude evidence from the penalty phase for abuse of discretion. United States v. Lujan, 603 F.3d 850, 853 (10th Cir.2010); United States v. Fell, 531 F.3d 197, 209, 219-20 (2d Cir.2008); United States v. Mitchell, 502 F.3d 931, 991 (9th Cir.2007). The decision specifically to deny allocution is also reviewed for abuse of discretion.

See United States v. Caro, 597 F.3d 608, 635 n. 24 (4th Cir.2010); United States v. Purkey, 428 F.3d 738, 756 (8th Cir.2005). Whether the denial of allocution violates a constitutional right is a question of law reviewed de novo. Purkey, 428 F.3d at 756-57. The Supreme Court has not expressly recognized a constitutional right to allocution. The circuits that have addressed the question have held there is no constitutional right to allocution before a jury in a federal capital sentencing hearing. United States v.

Jackson, 549 F.3d 963, 980-81 (5th Cir.2008), cert. denied, 558 U.S. 828, 130 S.Ct. 51, 175 L.Ed.2d 43 (2009); United States v. Honken, 541 F.3d 1146, 1172 (8th Cir.2008), cert. denied, 558 U.S. 1091, 130 S.Ct. 1011, 175 L.Ed.2d 618 (2009); United States v. Barnette, 211 F.3d 803, 820 (4th Cir.2000). See also Goff v. Bagley, 601 F.3d 445, 464 (6th Cir.2010) (observing that there is no general right to allocution under the Constitution). In Boardman v.

Estelle, 957 F.2d 1523, 1525 (9th Cir.1992), the Ninth Circuit held in a non-capital case that a state court violated the petitioner’s due process rights by denying his request to speak to the trial court before sentencing. But Boardman does not help Lawrence because, in this capital ease, his right to allocution before the court prior to sentencing is assured by Fed.R.Crim.P. 32 and was not denied him by the district court.

No circuit court of appeals has recognized a constitutional right to allocution before the jury during the sentencing phase of a federal capital trial, and Lawrence has cited no authority that persuades us to become the first circuit to find such a right.

Under Fed.R.Crim.P. 32(i)(4)(A)(ii), dealing generally with sentencing in federal court, “the court,” before imposing sentence, is required to “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” Rule 32 does not, however, expressly require the district court to permit the defendant to address the jury before the jury decides upon a sentence.

Enforcing the plain language of Rule 32, most courts have deemed it satisfied in a federal capital case — where the jury renders its verdict recommending a sentence of death or life imprisonment, but the court is required by 18 U.S.C. § 3594 to actually impose the sentence in accordance with the verdict — if the court allows the defendant to speak to the court before the sentence is actually imposed. Honken, 541 F.3d at 1172; Barnette, 211 F.3d at 820; United States v. Hall, 152 F.3d 381, 392-93 (5th Cir.1998), abrogated on other grounds by United States v.

Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). Consistent with these authorities, we hold that Rule 32 does not confer a right to allocution before the jury in a capital case in the form of an unsworn statement not subject to cross-examination. Under the FDPA’s sentencing scheme, however, “[t]he defendant may present any information relevant to a mitigating factor.” 18 U.S.C. § 3593(c).

The information need not be admissible under the rules of evidence, but “may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” Id. Irrespective of whether he had a constitutional or statutory right to allocution, Lawrence contends the district court ought to have permitted his proffered allocution as information relevant to mitigation. Several district courts have taken this approach and exercised their discretion to permit allocution. See, e.g., United States v.

Wilson, 493 F.Supp.2d 509, 510-11 (E.D.N.Y.2007); United States v. Henderson, 485 F.Supp.2d 831, 846 (S.D.Ohio 2007). Indeed, allowing allocution “to mitigate the sentence” only before the court, which has no discretion and is obliged to impose sentence in accordance with the jury’s recommendation, would seem to be an “empty formality.” Wilson, 493 F.Supp.2d at 511; Henderson, 485 F.Supp.2d at 846.

Further, although the FDPA does not mention allocution, the probative value of the sound of the defendant’s own voice, explaining his conduct and subsequent remorse in his own words, as information relevant to mitigation, can hardly be gainsaid. See Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (“The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”) Yet, § 3593(

c) also recognizes the district court’s discretion to exclude information if its probative value is outweighed by the danger of unfair prejudice. See Caro, 597 F.3d at 635 n. 24; Bolden, 545 F.3d at 628. In Wilson and Henderson, the courts permitted allocution, but only subject to defined conditions and limitations. Here, the district court did not allow allocution, but did not deny Lawrence the right to make a statement before the jury under oath and subject to cross-examination.

Lawrence chose not to personally address the jury under these constraints, but he has not identified any unfairness inherent in the district court’s requirement that any statement be made under oath. Lawrence presented extensive mitigation evidence, spanning four days. The mitigation witnesses who testified told of Lawrence’s remorse, acceptance of responsibility, opportunities for rehabilitation, and family ties, and Lawrence’s counsel introduced into evidence a journal in which Lawrence apologized for killing Hurst, expressed love for his children, and said that he was willing to spend his life in prison.

Considering the record as a whole, Lawrence has failed to show that the district court abused its discretion by denying al-locution. The district court applied the correct legal standards in exercising its discretion. The court did not explicitly identify the unfair prejudice that was deemed to outweigh the probative value of Lawrence’s proffered unsworn statement. Yet, considering the extent of Lawrence’s mitigation case and the contents of his short unsworn statement, the court could well have concluded that the probative value of the statement was limited and cumulative.

We are not left with a definite and firm conviction that the trial court committed a clear error of judgment in this regard and therefore find no abuse of discretion in the disallowance of allocution. See United States v. Batti, 631 F.3d 371, 379 (6th Cir.2011). 5. Improper Imposition of Death Sentence Lawrence was found guilty under Count Seven of violating 18 U.S.C. § 2113 by attempting to commit bank robbery and killing a person in the process. The statute prescribes life imprisonment or death as possible penalties. 18 U.S.C. § 2113(e).

Lawrence was found guilty under Count Eight of carrying a firearm during and in relation to attempted armed bank robbery and committing murder. 18 U.S.C. § 924(c), (j)(l). This offense is subject to punishment “by death or by imprisonment for any term of years or for life, ... [ejxcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” Id. In his fifth claim of error, Lawrence contends that because § 924(c)(1)(

A) calls for sentencing under the provision with the greater minimum sentence, he should have been sentenced only under the penalty provisions applicable to the Count Seven offense, under which he was subject to a mandatory minimum sentence of life imprisonment and was sentenced to life. For support, Lawrence relies on United States v. Almany, 598 F.3d 238 (6th Cir.), vacated, — U.S. -, 131 S.Ct. 637, 178 L.Ed.2d 471 (2010). In Almany, § 924(c)(1)(

A) was interpreted literally to exempt a criminal defendant from its mandatory minimum sentence if he was subject to any other greater mandatory minimum sentence. Id. at 241-42. Almany’s reasoning was rejected in Abbott v. United States, — U.S. -, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010), as the Supreme Court vacated our decision in Almany and remanded for further consideration in light of Abbott. Pursuant to Abbott, the “except” clause of § 924(c)(1)(

A) refers only to provisions mandating a greater minimum sentence for use of a firearm in connection with a predicate crime. Abbott, 131 S.Ct. at 26. On remand in Almany, we restored the sentence that had been originally imposed under § 924(c). United States v. Almany, 626 F.3d 901 (6th Cir.2010). The original Almany decision is thus no longer good law, and Lawrence’s argument fails. Because the penalty provision applicable to the Count Seven offense, 18 U.S.C. § 2113, does not prescribe a mandatory minimum sentence of life imprisonment for use of a firearm, it does not come within the reach of the § 924(c)(1)(A) “except” clause and does not restrain operation of the § 924(

j) penalty provision applicable to the Count Eight offense under which he was sentenced to death. We thus reject Lawrence’s fifth claim of error. 6. Arbitrary Imposition of Death Sentence Lawrence contends that imposition of the death sentence on Count Eight was arbitrary and therefore violated the Eighth Amendment and the FDPA. He bases this claim on the fact that six jurors found, as one of fifty-one mitigating factors considered, that a sentence of life without parole is an appropriate and sufficient punishment, but nonetheless voted to séntence him to death.

Lawrence contends this inconsistency can only be explained as the product of arbitrariness or confusion. Under the FDPA, we are required to remand the case for reconsideration or imposition of a sentence other than death upon finding that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. 18 U.S.C. § 3595(c)(2). Arbitrary imposition of the death penalty violates the Eighth Amendment. See Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Smith v. Mitchell, 567 F.3d 246, 263 (6th Cir.2009); Getsy v.

Mitchell, 495 F.3d 295, 304 (6th Cir.2007). The FDPA requires a higher standard of proof for aggravating factors than mitigating ones. The prosecution must establish the existence of an aggravating factor beyond a reasonable doubt, and the jury must agree unanimously. 18 U.S.C. § 3593(c). The defendant need only establish the existence of a mitigating factor by a preponderance of the evidence. Id. If one juror finds that the defendant established the existence of a mitigating factor, all jurors may consider that mitigating factor in the weighing process. 18 U.S.C. § 3593(d); Louis Jones v.

United States, 527 U.S. 373, 377, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). However, jurors are not required to find any particular factor mitigating nor to give it any particular weight. United States v. Basham, 561 F.3d 302, 337 (4th Cir.2009); United States v. Paul, 217 F.3d 989, 999 (8th Cir.2000). Under the FDPA, the jury exercises complete discretion in its determination of whether the aggravating factors outweigh the mitigating factors. United States v. Sampson, 486 F.3d 13, 31 (1st Cir.2007); United States v.

Allen, 247 F.3d 741, 781 (8th Cir.2001), vacated on other grounds, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002). “A capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision.” Tuilaepa v. California, 512 U.S. 967, 979, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994).

As the district court instructed the'jury and as this court noted in the prior appeal, “the weighing of mitigating and aggravating circumstances is not to be ‘a mechanical process.’ Rather, the factors should be considered ‘qualitatively’ and the decision ‘must be a reasoned response.’ ” Lawrence, 555 F.3d at 265 n. 4. “ ‘The weighing is not numeric; the perceived significance, not the number, of aggravating and mitigating factors determines the decision.’ ” United States v. Davis, 609 F.3d 663, 673 (5th Cir.2010) (quoting Louis Jones, 527 U.S. at 408, 119 S.Ct. 2090 (Ginsburg, J., dissenting)).

Lawrence’s focus on individual jurors’ findings on a single mitigating factor distorts the overall picture of the jury’s verdict on Count Eight. In the eligibility phase of Lawrence’s trial, the jury unanimously found that the government proved, beyond a reasonable doubt, two statutory aggravating factors:

(1) Lawrence killed Hurst in the commission of an attempted armed bank robbery or in escaping apprehension for such offense and knowingly created a grave risk of death to one or more persons in addition to Hurst; and

(2) Lawrence killed Hurst in expectation of the receipt of anything of pecuniary value. In the sentencing phase, the jury unanimously found that the government proved, beyond a reasonable doubt, two non-statutory aggravating factors:

(1) Lawrence committed three other bank robberies armed with a firearm, wearing a mask, and making threats to victims within a year of the commission of the capital crimes; and (2) the capital crimes committed by Lawrence caused harm to Hurst’s family members, friends, and community members. As for the mitigating factors, on Count Eight, the jurors cumulatively made a total of 304 mitigating factor findings, including two mitigating factors that were not on Lawrence’s list of forty-nine.

While six jurors found that Lawrence’s proposed mitigating factor — “[l]ife in prison without the possibility of parole is an appropriate and sufficient punishment” — had been established, six did not and were under no obligation to consider it. Even the jurors who did find the mitigating factor established were not obliged to conclude that all the aggravating circumstances failed to outweigh all the mitigating factors. The jurors who found the mitigating factor established also found the aggravating factors established, and by a higher standard of proof.

It was not arbitrary for the jury to decide that the aggravating factors outweighed the mitigating factors. Lawrence contends that the six jurors’ findings that life imprisonment is “an appropriate and sufficient punishment” was a “binding vote,” preclusive of each of those six jurors’ prerogative to ultimately find the mitigating factors outweighed by the aggravating factors.

This construction is at odds with the jury instructions, which defined “mitigating factor” as “simply additional information about Daryl Lawrence’s life or character, or about the circumstances surrounding the offense, that would suggest, in fairness and mercy, that a sentence of death is not the most appropriate punishment, and that a sentence of life in prison without any possibility, of release is the more appropriate punishment.” R. 213, Sentencing Instructions at 29, Page ID # 1684 (emphasis added).

Thus, as explained in our earlier ruling, a juror’s finding that a mitigating factor was established simply represents his or her determination that Lawrence demonstrated the existence of the factor by a preponderance of the evidence and that the factor had mitigating weight to be balanced against aggravating factors. Lawrence, 555 F.3d at 267.

Far from being a binding vote, a juror’s finding of a mitigating factor — even that life imprisonment is an appropriate punishment — simply means the factor could be considered by the jury in deciding whether a sentence of death was not the most appropriate punishment and whether life imprisonment was more appropriate.

Lawrence has not identified an error in the district court’s instructions, and our review of the record shows that the court properly set out the burdens of proof, told the jurors what they could consider as they weighed the sentence, and advised them that the weighing process was not a mechanical process. There is no indication that the jurors failed to understand or follow the court’s instructions. Indeed, their detailed findings with respect to the mitigating factors suggests that they took their duty seriously.

Lawrence’s argument that the Count Eight sentence is arbitrary is unfounded and his speculation about jurors’ thought processes is unsubstantiated and unavailing: As we observed in our earlier ruling, “[t]o the extent the differences in the jurors’ mitigation findings remain unexplained and may give rise to speculation, the fact remains that there is no evidence that any arbitrary factor ‘most likely’ influenced the bottom line verdicts.” Id. at 268.

We therefore reject Lawrence’s claim that the sentence of death was arbitrarily imposed. ., 7. “Pecuniary Gain” Statutory Aggravating Factor Lawrence contends the district court erred by improperly permitting the jury to consider pecuniary gain as a statutory aggravating factor in relation to the Count Seven and Count Eight offenses because pecuniary gain was not expected to follow as a direct result of the murder.

Lawrence challenged the pecuniary gain factor by moving to strike it from the indictment prior to trial and by filing a motion for judgment of acquittal under Fed.R.Crim.P. 29 at the close of the government’s case in chief. The district court denied both motions. We now address the legal sufficiency of the indictment; to the extent Lawrence challenges the evidentiary support for the charged aggravating factor, his arguments are addressed below in connection with Claim 9. We review the sufficiency of the indictment de novo. United States v. Damra, 621 F.3d 474, 506 (6th Cir.2010). Statutory

interpretation is a matter of law also reviewed de novo on appeal. Batti, 631 F.3d at 375; see also Bolden, 545 F.3d at 616 (holding that a district court’s

interpretation of a statutory aggravating factor is reviewed de novo). A criminal indictment is facially valid if it: “(1) contains the elements of the offense charged, (2) fairly informs a defendant of the charge against which he must defend and (3) enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” United States v. Titterington, 374 F.3d 453, 456 (6th Cir.2004) (quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)) (interior quotation marks omitted). An indictment need not anticipate affirmative defenses or exceptions. Id.

Count Seven of the indictment charged that Lawrence attempted to rob a bank, put employees’ lives in jeopardy with a handgun, and killed Hurst in committing attempted robbery or attempting to avoid apprehension. Count Eight charged that Lawrence used and discharged a firearm during the attempted armed robbery and murdered Hurst in the attempt to perpetrate robbery.

The indictment further alleged, per the grand jury’s special findings, in relation to Counts Seven and Eight, that Lawrence committed murder during the perpetration of attempted bank robbery in the expectation of the receipt of anything of pecuniary value, a statutory aggravating factor under 18 U.S.C. § 3592(c)(8). On its face, the indictment contains the elements of the pecuniary gain aggravating factor and informed Lawrence of the charges against which he had to defend. Lawrence argues, however, that this aggravating factor is not applicable unless the alleged murder itself was committed for pecuniary gain.

It is not enough, he contends, that the attempted bank robbery was in expectation of receiving pecuniary gain. Lawrence is right. Although the § 3592(c)(8) pecuniary gain factor does not apply only to murders-for-hire, it may apply to a killing in the course of a bank robbery only where pecuniary gain was expected to follow as a direct result of the murder. See Bolden, 545 F.3d at 615 (collecting cases). Yet, the offense conduct alleged in the instant indictment is broad enough to encompass conduct within the grand jury’s “pecuniary gain” special finding, as interpreted in the case law.

The indictment alleged that Lawrence murdered Hurst in the attempt to perpetrate robbery. Thus, the indictment sufficiently charged that Lawrence expected pecuniary gain as a direct result of murdering Hurst. We find no error in the district court’s refusal to strike the pecuniary gain factor from the indictment. 8. Improper Admission of “Lifestyle Evidence” Lawrence contends the district court erred by allowing the government to introduce evidence about Lawrence’s lavish lifestyle as proof of motive because it was irrelevant to proving the pecuniary gain factor and was overwhelmingly prejudicial.

The government responds that the evidence was relevant because it established a pattern in the timing of the robberies, explained why the robberies became increasingly violent, and rebutted Lawrence’s claim that he did not intend to kill Hurst and was not trying to get to the bank vault when he fired at Hurst. We review evidentiary rulings for abuse of discretion. Boyd, 640 F.3d at 668. “The evidence must be viewed ‘in the light most favorable to its proponent, giving the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.’ ” United States v.

Wheaton, 517 F.3d 350, 364 (6th Cir.2008) (quoting United States v. Cope, 312 F.3d 757, 775 (6th Cir.2002)). Under 18 U.S.C. § 3593(c), the government may present any information relevant to an aggravating factor unless “its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” The trial court’s “ ‘discretion in balancing the probative value of evidence against its potential for unfair prejudice is very broad.’ ” United States v. Deitz, 577 F.3d 672, 689 (6th Cir.2009) (quoting United States v. Bilderbeck, 163 F.3d 971, 978 (6th Cir.1999)).

Under the FDPA, reversal is required only if the government cannot establish beyond a reasonable doubt that the error was harmless. 18 U.S.C. § 3595(c)(2)(C); Lighty, 616 F.3d at 363. The district court addressed this issue before trial and during the eligibility phase. The government indicated that it intended to introduce evidence about Lawrence’s spending habits and previous bank robberies to establish motive, intent, and the pecuniary gain aggravating factor.

The district court concluded that the evidence was relevant to Lawrence’s motive and intent because he maintained that he did not shoot Hurst intentionally, and that the probative value of the evidence was not sufficiently outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. The district court also overruled Lawrence’s objections at trial. During the guilt phase of trial, the government introduced evidence that Lawrence robbed three banks between January and September 2004 and attempted to rob a bank in January 2005.

The jury convicted Lawrence of the robberies, the attempted robbery, and related charges, as well as Counts Seven and Eight. During the eligibility phase, the government sought to prove the pecuniary gain aggravating factor, one other statutory aggravating factor, and at least one of the four statutory intent factors. 18 U.S.C. § 3591(a)(2). The government presented three witnesses. Two were friends of Lawrence who testified about trips they took with him. The third was a police detective who testified about his attempts to trace the proceeds of Lawrence’s bank robberies.

The evidence showed that Lawrence stole $200,000 in the first bank robbery. Shortly thereafter, he took two trips to Los Angeles with friends and spent money on expensive hotel rooms, luggage, tickets to professional basketball games, limousines, jewelry, and night clubs. k He also bought two vehicles at a total cost of about $37,000. A month before the second bank robbery, Lawrence pawned jewelry and luggage. The second robbery yielded $7,000 and the third, $80,000. After the third robbery, he reclaimed the items he had pawned.

Shortly before the fourth robbery, Lawrence pawned personal possessions and his vehicles. Evidence as to why Lawrence wanted money and how he spent it is not irrelevant to the pecuniary gain aggravating factor under the circumstances of this case. The pecuniary gain aggravating factor only applies where pecuniary gain is expected to follow as a direct result of the murder. Bolden, 545 F.3d at 615. All robberies are for pecuniary gain; many murders are not. In United States v.

Jackson-Randolph, 282 F.3d 369, 378 (6th Cir.2002), evidence of a defendant’s lavish lifestyle was deemed admissible where there was other credible evidence of illegal activity, the money was not available from a legitimate source, and the periods of wealth or spending correlated with the periods of alleged illegal activity. Under these circumstances, the evidence was deemed relevant to both demonstrate motive and support an inference that the defendant committed the crime. Id. Here, in evaluating whether the pecuniary gain factor was proven, the jury had to determine whether Lawrence shot Hurst in order (

a) to remove an obstacle to the attempted bank robbery, or (

b) to abort the bank robbery attempt and secure his escape. If the jury were to find the former, then the pecuniary gain factor would have been established; if the latter, then the pecuniary gain factor would not have been established. The government’s purpose in introducing the lavish lifestyle evidence was to show that Lawrence had become accustomed to certain pleasures that money could buy.

Having learned from earlier robberies that his chances of making a big haul from a robbery were enhanced if he gained access to the bank vault, the government argued that Lawrence’s now accustomed lifestyle drove him to threaten or use violence to reach the vault. The lifestyle evidence was thus offered to help explain the avarice that motivated Lawrence to commit the bank robberies.

The government contended the jury could infer from the lifestyle evidence that when Hurst became an obstacle, Lawrence, driven by the compulsion of his spending habits, used deadly force to remove Hurst in expectation of a greater take from the vault. The government contends this inference is supported by other facts as well, arguing that Lawrence did not abort the robbery immediately after firing at Hurst, but only after Hurst returned fire and wounded him. Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence.” Fed.R.Evid. 401(a).

Evidence of the specific reason for which Lawrence wanted money badly enough to commit several bank robberies does have some tendency to explain the motivation for Lawrence’s conduct and could be considered by a rational jury to make it more probable that Lawrence shot Hurst in order to complete the robbery rather than solely to facilitate his escape. The government proved that Lawrence entered a bank armed with a loaded weapon, pushed his way past customers at the entrance, rushed the teller counter with handgun drawn and aimed, and shot Hurst as he drew his weapon.

Lawrence fled the bank only after Hurst returned fire and wounded him. There was evidence that Lawrence obtained substantially more money from the bank robberies in which he reached the vault, instead of settling for what he could take from a bank teller. This evidence could have been viewed as shedding light on Lawrence’s motivation for shooting Hurst. We thus find no error in the district court’s determination that the lifestyle evidence had probative value. Lawrence maintains that any probative value was outweighed by the danger of unfair prejudice.

He contends the lifestyle evidence was likely to appeal to the jurors’ economic prejudices, triggering resentment and envy. He argues the evidence would tend to give rise to inferences that Lawrence was shallow, materialistic and of poor moral character. We acknowledge that the probative value of the lifestyle evidence to show Lawrence’s motive for shooting Hurst was marginal. We reject the notion, however, that the lifestyle evidence was unfairly prejudicial.

The jury had, in the guilt phase, just unanimously found beyond a reasonable doubt that Lawrence was guilty of committing three armed bank robberies and attempting a fourth, and of having killed Hurst during the course of the attempted bank robbery. Any tendency of the evidence of Lawrence’s profligate spending habits to impugn his moral character pales in comparison with the depravity reflected in the conduct of which the .jury had already found him guilty. Lawrence has not shown that the evidence’s probative value was substantially outweighed by the danger of unfair prejudice.

Accordingly, the district court did not abuse its discretion by ádmitting the lifestyle evidence. 9. Sufficiency of Evidence of Pecuniary Gain Motivation Lawrence contends the government did not present sufficient evidence to support a finding, beyond a reasonable doubt, that he expected to gain something of pecuniary value by killing Hurst.

Lawrence maintains that he was surprised to see an officer in the bank, that he fired shots to prevent Hurst from shooting him, that Hurst was not near the bank vault, that he was in the bank for only around twenty seconds, and that after reaching the teller counter,- he left the bank without continuing to the vault or taking anything from a teller drawer. We review jury findings of aggravating factors under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Viewing the evidence in the light most favorable to the government, we must uphold the verdict if any rational trier of fact could have found the existence of the aggravating factor beyond a reasonable doubt. See Bolden, 545 F.3d at 615; United States v. Agofsky, 458 F.3d 369, 374 (5th Cir.2006). Viewing the evidence in the light most favorable to the prosecution, the evidence was sufficient to support the jury’s finding of the pecuniary gain aggravating factor. Testimony about the earlier bank robberies indicated that Lawrence brandished a gun at each one.

In the first robbery, he held employees at gunpoint, went behind the teller counter, and forced employees to open the vault. Lawrence left with over $200,000. He threatened to shoot people during the second and third robberies. In the second robbery, Lawrence attempted to force employees to open the vault but did not succeed. He left with around $7,000. During the third robbery,. he held a gun to a bank employee’s head to force him to open the vault, shoved him to the floor, once the vault was open, and fired a shot that grazed the employee’s foot. Lawrence took around $80,000 from that bank.

This history demonstrates Lawrence’s willingness to use threats of deadly force to get what he wanted. As for the attempted robbery, a bank employee testified that Lawrence entered the bank with a cocked semi-automatic weapon and forced him and two other employees back into the bank from the vestibule. One. of these employees testified that she first heard shots coming from behind her, where Lawrence was. Another one of the group of three, an office manager, testified that Lawrence was close behind her when she heard the first shot fired, on the right side of her ear.

A teller behind the teller counter testified that she saw an arm with a gun come over the top of the counter as Hurst, from behind the counter, was trying to unhol-ster his weapon. She testified that Lawrence shot Hurst before Hurst pulled his gun from his holster. A witness testified that at least one of the shots Lawrence fired at Hurst was from close range, two to three feet.

From this testimony, although the witnesses were not entirely consistent, a reasonable juror could find that Lawrence entered the bank armed with a loaded weapon, ran toward the teller counter, encountered Hurst, and shot him in order to take money from the bank — thus killing Hurst in expectation of pecuniary gain. From the bank security camera videotape evidence, which shows Lawrence but not Hurst, we know that the actual exchange of gunfire was fast and furious, occupying less than five seconds. The videotape does not definitively disclose who fired first.

Nor does it disclose whether Lawrence fired the fatal shot before he was struck by shots fired by Hurst or whether Lawrence began his retreat immediately after firing at Hurst or only after being wounded. It does not disclose Lawrence’s thoughts at the moment he fired at Hurst. Lawrence clearly had no time to deliberate after first seeing Hurst and realizing that he was armed. Lawrence reacted instantaneously. It is for this reason that the history of Lawrence’s prior bank robberies and evidence of his lifestyle was probative of Lawrence’s state of mind as he entered the bank.

Although there is no evidence that Lawrence attempted to complete the robbery after he was shot, a rational juror could have reasonably concluded that he fled the bank because he was wounded, not because his encounter with and shooting of Hurst alone had deterred him from completing the robbery. In other words, considering all the evidence in the light most favorable to the government, we conclude that a rational juror reasonably could have found that Lawrence, when he fired the fatal shot, still harbored hope and expectation of completing the robbery.

This is sufficient to sustain the finding of the pecuniary gain factor. Decisions of other courts faced with analogous evidence support this conclusion. In Bolden, the defendant encountered and struggled with the bank guard even before entering the bank. The defendant fired two shots which claimed the guard’s life. Immediately after firing the shots, the defendant fled the scene. The Eighth Circuit rejected the defendant’s argument that there was insufficient evidence that he killed the bank guard in expectation of pecuniary gain rather than to eliminate a witness and escape from a botched robbery.

The court found that because the defendant brought a loaded gun to a bank and was disappointed that he did not complete the bank robbery, there was sufficient evidence for a reasonable jury to find that he shot the victim to remove an obstacle and complete the robbery. Bolden, 545 F.3d at 615-16. In United States v. Brown, 441 F.3d 1330 (11th Cir.2006), the defendant stabbed a postal worker repeatedly and took money orders. It was unclear how many of the stab wounds had been inflicted before the defendant gained control of the money orders.

The Eleventh Circuit found that there was sufficient evidence of pecuniary gain motivation, reasoning that “the jury could reasonably have found that [the defendant] killed [the victim] before he had control of the money orders, and that the killing was necessary so that [the defendant] could complete the robbery (which, obviously, carried with it the expectation of pecuniary gain).” Id. at 1371. In United States v.

Barnette, 390 F.3d 775, 807-08 (4th Cir.2004), vacated on other grounds, 546 U.S. 803, 126 S.Ct. 92, 163 L.Ed.2d 32 (2005), the defendant testified that, on the night of the crime, he wanted a car to drive from North Carolina to Virginia and planned to carjack somebody. He hid near an intersection waiting for a motorist to stop, confronted the driver of a stopped vehicle, forced the driver from the car at gunpoint, walked him across a highway, robbed him and then killed him before driving off in the car.

Despite the defendant’s testimony that he shot the victim “for no damn reason,” — “just being a damn idiot,” the Fourth Circuit concluded that there was sufficient evidence for the jury to conclude that the defendant killed the victim in expectation of receiving something of pecuniary value, namely, the victim’s money and transportation to Virginia. Id. at 808.

Consistent with these authorities, and upon review of the evidence in the light most favorable to the government, we reject Lawrence’s challenge to the sufficiency of the evidence supporting the finding of pecuniary gain motivation. 10. “Grave Risk of Death” Statutory Aggravating Factor Lawrence contends the “grave risk of death” aggravating factor set forth in 18 U.S.C. § 3592(c)(5) should not have been applied in this case because it did not serve to narrow the class of death-eligible defendants and unfairly skewed the weighing of aggravating and mitigating factors.

Lawrence moved the district court to strike the grave-risk-of-death aggravating factor both prior to trial and at the close of the government’s proofs in the eligibility phase. He maintained that the factor duplicated the “put in jeopardy the life of employees” element of Count Seven and, by incorporation, Count Eight, and therefore failed to narrow the class of individuals eligible for the death penalty, in violation of the Fifth and Eighth Amendments. The district court denied both motions. Lawrence’s constitutional challenge to the statutory aggravating factor is reviewed de novo.

See Caro, 597 F.3d at 622; Purkey, 428 F.3d at 761. There are two stages in the capital sentencing decision making process: the eligibility decision and the selection decision. Tuilaepa, 512 U.S. at 971, 114 S.Ct. 2630. A defendant is rendered eligible for the death penalty in a homicide case upon a finding by the jury or judge that the defendant is guilty of murder and the finding of one aggravating circumstance at - either the guilt or penalty phase. Id. at 971-72, 114 S.Ct. 2630; Lowenfield v.

Phelps, 484 U.S. 231, 244-246, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). “The aggravating circumstance may be contained in the definition of the crime or in a separate sentencing factor (or in both).” Tuilaepa, 512 U.S. at 972, 114 S.Ct. 2630 (citing Lowenfield, 484 U.S. at 244-46, 108 S.Ct. 546). The aggravating circumstance is subject to two limitations. First, it “may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder.” Id. (citing Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993)).

Second, the aggravating circumstance may not be unconstitutionally vague. Id. Thus, as long as the “narrowing function” of the aggravating circumstance is not impermissibly vague and is incorporated into the capital sentencing scheme, whether in the guilt phase or the eligibility phase, the process is not constitutionally infirm. Lowenfield, 484 U.S. at 246, 108 S.Ct. 546. In Lowenfield, the jury found the defendant guilty of three counts of murder, finding him eligible for the death penalty because he had the specific intent to kill or inflict great bodily harm upon more than one person.

The sole aggravating circumstance found and considered by the jury in returning the sentence of death was that “the offender knowingly created a risk of death or great bodily harm to more than one person.” Yet, though “the aggravating circumstance duplicated one of the elements of the crime,” the Court held the sentence was not constitutionally infirm, because the required narrowing function of the aggravating circumstance was. performed, albeit twice. Id.; see also Buell v. Mitchell, 274 F.3d 337, 369 (6th Cir.2001).

In this case, Count Seven alleged that Lawrence put in jeopardy the lives of bank employees by means and use of a dangerous weapon (18 U.S.C. § 2113(d)), and killed Hurst in attempting to commit a bank robbery or avoid apprehension (§ 2113(e)).

Section 2113(

d) authorizes twenty-five years’ imprisonment and § 2113(

e) authorizes a sentence of death. Count Eight alleged that Lawrence murdered Hurst with malice aforethought in the attempt to perpetrate a robbery (18 U.S.C. § 924(j)(l)). Count Eight expressly incorporated Count Seven.

Section 924(j)(

l) provides that the penalty for violating § 924(

c) and committing murder is death or imprisonment for life or a term of years. The statutory aggravating factor at issue provides that, in determining whether a death sentence is justified, the jury shall consider whether the defendant knowingly created a grave risk of death to one or more persons in addition to the victim while committing or escaping apprehension for the death-eligible offense. 18 U.S.C. § 3592(c)(5).

In the guilt phase, the jury found Lawrence guilty of all counts in the indictment and, specifically in relation to Count Seven, found that Lawrence “put in jeopardy the life of some person by the use of a dangerous weapon while engaged- in attempting to take money.” In the eligibility phase, in relation to Count Seven, the jury found that Lawrence “knowingly created a grave risk of death to one or more persons in addition to Bryan Hurst.” Lawrence does not challenge the aggravating factor on vaguenéss grounds.

He contends the grave-risk-of-death statutory aggravating factor failed to perform a narrowing function because it did not narrow the class of offenders eligible for the death penalty, but merely duplicated the “put in jeopardy” element of Count Seven. First, the claim is mistaken as a factual matter. The only offenses in the indictment punishable by death were violations of 18 U.S.C. § 2113(

e) and § 924(j)(l). The jury’s finding that Lawrence put someone’s life in jeopardy in violation of § 2113(

d) did not make him eligible for the death penalty, so the fact that the § 3592(c)(5) grave-risk-of-death aggravating factor may have overlapped with § 2113(

d) under the facts of this case is of no consequence. Second, Lawrence’s claim fails as a matter of law. The FDPA narrows the class of defendants eligible for the death penalty by requiring the jury to find that the defendant had the requisite intent under 18 U.S.C. § 3591 and at least one statutory aggravating factor under 18 U.S.C. § 3592(c). Lighty, 616 F.3d at 368 n. 44; Allen, 247 F.3d at 761. Lawrence was eligible for the death sentence by virtue of the jury’s findings that he committed offenses under 18 U.S.C. §§ 924(j)(

l) and 2113(e), that he had the requisite intent under 18 U.S.C. § 3591(2), and that the government proved two statutory aggravating factors, grave risk of death and pecuniary gain. 18 U.S.C. § 3592(c)(5), (8). The FDPA in general and Lawrence’s prosecution in particular satisfy the requirement that the aggravating circumstance cannot apply to every defendant eligible for the death penalty. See Arave, 507 U.S. at 474, 113 S.Ct. 1534. The use of the grave-risk-of-death aggravating factor along with the “put in jeopardy” element of 18 U.S.C. § 2113(

d) did not violate Lawrence’s constitutional rights. Our sister . circuits have rejected similar challenges to aggravating factors under the FDPA. See Lighty, 616 F.3d at 368 n. 44; United States v. Higgs, 353 F.3d 281, 315— 16 (4th Cir.2003); United States v. McCullah, 76 F.3d 1087, 1109-10 (10th Cir.1996). Lawrence cites United States v. McVeigh, 944 F.Supp. 1478, 1489-90 (D.Colo.1996), for the proposition that allowing the jury “to weigh as an aggravating factor a crime already proved in a guilty verdict would unfairly skew the weighing process in favor of death.” The McVeigh ruling is

summary in nature and unpersuasive. It has been soundly rejected by other courts. See United States v. Mayhew, 380 F.Supp.2d 936, 947 (S.D.Ohio 2005) (collecting cases and objecting to notion of asking jury to sentence defendant without considering the crime itself); United States v. Lentz, 225 F.Supp.2d 666, 669-70 (E.D.Va.2002) (noting there is nothing wrong with permitting jury to consider crimes for which defendant was found guilty beyond a reasonable doubt in determining appropriate sentence); United States v.

Llera Plaza, 179 F.Supp.2d 464, 484 (E.D.Pa.2001) (noting that McVeigh seems to contravene the holding of Lowen-field). Accordingly, we reject Lawrence’s challenge to the grave-risk-of-harm aggravating factor. 11. Prosecutorial Discretion to Charge Non-Statutory Aggravating Factors Lawrence contends that the FDPA, 18 U.S.C. § 3592(c), by giving counsel for the government unbridled discretion to propose and argue for jury consideration of non-statutory aggravating factors, makes an unconstitutional delegation of legislative authority.

The district court denied Lawrence’s motion to strike the noticed non-statutory aggravating factors — i.e., contemporaneous findings of guilt and victim impact evidence. Lawrence’s constitutional challenge is reviewed de novo. See Harold Jones, 641 F.3d at 713. Under the non-delegation doctrine, Congress cannot delegate its legislative power to another branch of government. Mistretta v. United States, 488 U.S. 361, 371, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). However, Congress can seek assistance from coordinate branches. Id. at 372, 109 S.Ct. 647.

In doing so, it must provide “an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.’ ” Id. (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928)) (alteration in original). Lawrence contends it is the role of Congress to define crimes and punishments and that permitting the government to select non-statutory aggravating factors without limit or guidance violates the non-delegation principle.

He contends the FDPA lacks any intelligible principle and gives prosecutors extensive and unconstrained power to determine what factors will be used in a particular capital case. Like all other courts that have considered this argument, we reject Lawrence’s challenge. First, the express recognition' in § 3592(

c) of the sentencer’s freedom to consider non-statutory aggravating factors is hardly a delegation of legislative power. See Higgs, 353 F.3d at 321-22; United States v. Louis Jones, 132 F.3d 232, 239-40 (5th Cir.1998).

Second, the FDPA sentencing scheme includes various limits on non-statutory aggravating factors, such as requiring that prior notice be given to the ■ defendant, 18 U.S.C. § 3593(a); giving the district court “gatekeeper” responsibility for limiting admission of unfairly prejudicial information, 18 U.S.C. § 3593(c); and requiring that the jury find at least one intent element and one statutory aggravating factor before considering any non-statutory factor, 18 U.S.C. § 3593(d).

These safeguards have been deemed sufficient to limit the prosecutor’s power and render the delegation of discretion to charge non-statutory aggravating factors constitutional. See e.g., United States v. Mitchell, 502 F.3d 931, 979 (9th Cir.2007); Higgs, 353 F.3d at 321-22; United States v. Paul, 217 F.3d 989, 1003 (8th Cir.2000); Louis Jones, 132 F.3d at 239-40. Lawrence cites no persuasive authority to the contrary. Accordingly, we find no error in the district court’s denial of the motion to. strike the non-statutory factors on this ground. 12.

Failure to Charge NonrStatutory Aggravating Factors in Indictment Lawrence argues that the Fifth Amendment’s Indictment Clause requires the government to present non-statutory aggravating factors to the grand jury. He reasons that because a jury in an FDPA case can choose the death sentence only if it finds that both statutory and non-statutory aggravating factors outweigh the mitigating factors, both statutory and non-statutory aggravating factors must be found by the grand jury. The district court denied Lawrence’s motion to strike the notice of intent to seek the death penalty. We review de novo.

The Indictment Clause of the Fifth Amendment requires that a defendant be charged with only those charges brought before the grand jury. In Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Court, held that an aggravating factor necessary for imposition of the death penalty must be found by the jury, not by the sentencing judge. After Ring, several courts have held that an indictment charging a death-eligible offense under the FDPA must charge the statutory aggravating factors. See Brown, 441 F.3d at 1367; United States v. Bourgeois, 423 F.3d 501, 507 (5th Cir.2005); United States v.

Allen, 406 F.3d 940, 942-43 (8th Cir.2005); Higgs, 353 F.3d at 297-98; United States v. Quinones, 313 F.3d 49, 53 n. 1 (2d Cir.2002). However, all five circuits that have considered whether non-statutory aggravators under the FDPA must be submitted to a grand jury and charged in the indictment have concluded that they do not. See United States v. Fell, 531 F.3d 197, 236-38 (2d Cir.2008); United States v. LeCroy, 441 F.3d 914, 922 (11th Cir.2006); Purkey, 428 F.3d at 749-50; Bourgeois, 423 F.3d at 507-08; Higgs, 353 F.3d at 298.

These courts have reasoned that only those factors necessary to make a defendant eligible for the death penalty — intent and a statutory aggravating factor — must be included in the indictment. Non-statutory aggravating factors are relevant considerations in the sentence selection decision, but do not, in themselves, determine whether a defendant is “eligible” to be considered for the death sentence. See Tuilaepa, 512 U.S. at 971-73, 114 S.Ct. 2630 (explaining differences between e

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