UNITED STATES of America, Plaintiff-Appellee, v. Lezmond C. MITCHELL, Defendant-Appellant, 502 F.3d 931

Opinion by Judge RYMER; Dissent by Judge REINHARDT. RYMER, Circuit Judge: Lezmond Mitchell, a Navajo, appeals his conviction and sentence for first degree murder, 18 U.S.C. §§ 1111, 1153, felony murder, 18 U.S.C. §§ 1111, 2111, carjacking resulting in death, 18 U.S.C. § 2119, and related federal crimes involving other Navajos on the Navajo Indian reservation in Arizona. A jury convicted Mitchell on all counts. Mitchell faced capital punishment under the Federal Death Penalty Act (FDPA), 18 U.S.C. §§ 3591-98, because of his conviction for carjacking resulting in death.

Following a penalty phase hearing, the jury unanimously returned a recommendation of a sentence of death as to each of the two victims who were murdered. The district court sentenced Mitchell to death on the carjacking count in accordance with the jury’s verdict. We conclude that no error requiring reversal occurred in connection with either conviction or sentence, and therefore affirm. I In October 2001, Mitchell, then 20 years old, Jason Kinlicheenie, Gregory Nakai and Jakegory Nakai decided to rob a trading post on the Arizona side of the Navajo Indian reservation.

Mitchell and 16 year-old Johnny Orsinger set out from Round Rock, Arizona, for Gallup, New Mexico, on October 27 to look for a vehicle they could steal to use during the robbery. They bought one knife and stole another while there. Hitchhiking back to the reservation, they were picked up by a trucker who took them part of the way.

Meanwhile, on the afternoon of Sunday, October 28, 2001, Alyce Slim (63 years old) and her nine year-old granddaughter, Jane Doe, left Fort Defiance, Arizona to go to Tohatchi, New Mexico where Slim hoped to secure the services of Betty Denison, a traditional medicine person, for leg ailments. It is a 35 minute drive that the two made in Slim’s pewter-colored double cab Sierra GMC pickup truck. They got to Tohatchi about 4 p.m. Denison was unable to assist her, but thought another medicine woman, Marie Dale, might be able to help.

She, Slim, and Jane drove to Twin Lakes, New Mexico where Slim arranged an appointment with Dale for the next day. The three returned to Denison’s home where they dropped Denison off around 5 p.m., then Slim and her granddaughter left. That is the last time they were seen alive. Somewhere in route, and somehow, Mitchell and Orsinger got into Slim’s truck. Slim and Jane were in front, Mitchell in the right-rear passenger seat and Orsinger in the left. Slim stopped near Sawmill, Arizona, to let Mitchell and Orsinger out of the car, but Orsinger started stabbing her with a knife and Mitchell joined in.

Slim ended up being stabbed 33 times, both from the left and right, with sixteen incised wounds on her hands that indicated she fought the attack. Once dead, her body was pulled onto the rear seat. Jane was put next to her. Mitchell drove the truck some 30-40 miles into the mountains with Jane beside her grandmother’s body. There, Slim’s body was dragged out. Jane was ordered out of the truck and told by Mitchell “to lay down and die.” Mitchell cut Jane’s throat twice, but she didn’t die. Orsinger and he then dropped large rocks on her head, which killed her.

Twenty-pound rocks containing blood tied to Jane were found near the bodies. Mitchell and Orsinger returned to the site with an axe and shovel. Mitchell dug a hole while Orsinger severed the heads and hands of Jane and Slim. Together, they dropped the severed .body parts (along with Mitchell’s glove) into the hole, and covered them. The torsos were pulled into the woods. Later they burned the victims’ clothing, jewelry, and glasses. Mitchell and Orsinger washed the blood from the knives in a nearby stream; the next day, Mitchell also washed the knives with alcohol to remove any blood.

Jane’s mother, Marlene, became concerned when Jane and Slim, who was Marlene’s mother, had not returned home. She tried to call Slim on her cell phone Sunday night, then the next morning at home, but got no answer. After checking at Slim’s house and Jane’s school, Marlene filed a missing persons report on Tuesday. On Wednesday, October 31, 2001, the Red Rock Trading Post, a convenience store and gas station located in Navajo territory, was robbed by three masked men.

Kinlicheenie supplied the masks as well as his parents’ car for use after the truck was abandoned; Mitchell carried a 12-gauge shotgun, and Jakegory Nakai had a .22 caliber rifle. Charlotte Yazzie, the store manager, was mopping the floor when one of the robbers assaulted her, striking her with his firearm and pulling her behind a desk. Watching this, another store clerk, Kimberly Allen, ducked behind shelving. A second robber saw Allen and pushed her against the counters.

When Allen said she didn’t know the combination to the safe, the gunman told her, “If you lie to me or you don’t cooperate with us, we are going to kill you.” He told Allen to turn on the gas pump. As she did, she-saw a pickup truck parked outside, which she described as a double cab beige Chevrolet. Yazzie was taken into a back room where the robbers demanded, and she provided, more money. Mitchell, Nakai and Kinlicheenie emptied the cash registers and safe and then tied down Allen and Yazzie in the vault room. They made off with $5,530 and Yazzie’s purse.

The robbers drove back to Kinlicheenie’s car and he followed the truck to a place about a mile and a half south of Wheat-fields, Arizona, where Mitchell set fire to it using kerosene stolen from the Trading Post. They returned to the Nakai residence and split the money. Mitchell got $300 from Kinlicheenie. As it happens, a customer and his girlfriend pulled into the parking lot while the robbery was in progress and saw two of the masked gunmen, one of whom was wearing purple gloves. The customer also saw a beige, extended cab Sierra or Silver-ado model truck parked at the fuel tank.

The customer’s girlfriend took down the license plate number and gave it to one of the Trading Post employees. The next day, a Navajo police officer discovered an abandoned pickup truck a mile and a half south of Wheatfíelds, Arizona, within the Navajo Indian reservation. The officer detected the odor of gasoline, and portions of the truck’s interior were burned. It turned out to be Slim’s 2001 GMC Sierra pickup. Criminal investigators discovered a purple latex glove and Halloween masks inside the truck, as well as Mitchell’s fingerprints and Slim’s blood.

Based on this information and a tip, investigators focused on Orsinger, Orsinger’s father, Mitchell, Jakegory Nakai and Gregory Nakai, among others. On the morning of November 4, 2001, FBI Agent Ray Duncan conducted a briefing with criminal investigators and SWAT team officers of the Navajo Department of Law Enforcement. Tribal warrants were issued and executed at the house of Gregory Nakai. Mitchell, Jimmy Nakai, and Gregory Nakai were arrested. Mitchell had been asleep and wore only a t-shirt and shortcuts. He asked for his pants, which he told an FBI agent were near a bunk bed on the floor.

As the agent was picking them up, a silver butterfly knife fell from a pocket. Gregory Nakai and his mother, Daisy Nakai, consented to a search of the house. Two FBI agents, an evidence technician, and a Navajo criminal investigator conducted the search. They retrieved the silver butterfly knife and found a second butterfly knife with a black handle. Trace amounts of blood from the silver knife were matched to Slim. The search also turned up a newspaper that had a front page story on the Trading Post robbery, and a cell phone belonging to Slim.

Agent Duncan and a Navajo criminal investigator met with Mitchell at the Navajo Department of Criminal Investigations around 1:30 p.m. Mitchell signed a waiver of his Miranda rights and, after flipping a coin, agreed to talk. When asked about his whereabouts on the weekend of October 27, Mitchell stated that he had been drinking around Round Rock. He denied being involved in the disappearances and robbery. Mitchell then agreed to a polygraph examination, which FBI Special Agent Kirk conducted about 5:30 p.m.

Mitchell was reminded that his Miranda rights still applied and he signed an FBI consent form after reading it. Kirk told Mitchell that the test results indicated he had lied. Mitchell made inculpatory statements about the robbery and agreed to a tape recorded interview after again being reminded of his Miranda rights. Mitchell admitted his involvement in the Trading Post robbery, and also confirmed that he was present when “things happened” to Slim and Jane. He agreed to help investigators find the bodies. The interview ended around 11:00 p.m.

Orsinger was arrested the next day, November 5, 2001, and he, too, agreed to take agents to the bodies. Orsinger had difficulty doing so, and agents called for Mitchell to be brought out. Mitchell directed Navajo police officers to the site. While there, Mitchell acknowledged to Kirk that his Miranda rights were in effect and agreed to answer more questions. According to the agent, Mitchell stated that he had stabbed the “old lady,” and that the evidence would show and/or witnesses would say that he had cut the young girl’s throat twice.

Mitchell said he told Jane to “lay down on the ground and die,” and that he and Orsinger then gathered rocks, and with Orsinger leading on, the two took turns dropping them on Jane’s head. Mitchell indicated that he and Orsinger retrieved an axe and shovel, severed the heads and hands, buried the parts in a foot-deep hole, burned the victims’ clothing, and cleaned the knives in a stream. Mitchell was returned to tribal jail and taken before a tribal judge on November 7.

A federal indictment was issued on November 21, and on November 29 an FBI agent picked up Mitchell from the tribal jail and drove him to the courthouse in Flagstaff, Arizona. Just before arraignment, agents read Mitchell his Miranda rights and obtained a signed waiver. Mitchell explained that one to two weeks before the Trading Post robbery, he had talked with Jakegory Nakai about committing a robbery. He and Orsinger hitchhiked from Round Rock, Arizona to Gallup, New Mexico to purchase liquor and while in Gallup, the two visited a shopping mall where they purchased one knife and stole another.

They caught a ride to Ya Ta Hey, New Mexico, where they were picked up by an older lady and a young girl near the border. Mitchell asked to be let off near Sawmill, Arizona, and when the truck stopped, Orsinger began stabbing the woman. Mitchell admitted that he stabbed her four to five times. They put the older woman and the little girl into the back, and drove into the mountains where they dragged Slim’s body out, threw rocks on the girl’s head, and severed the victims’ heads and hands. Mitchell said this was Orsinger’s idea, because he would also have severed the feet.

On July 2, 2002, a superceding indictment was returned charging Mitchell and Orsinger with murder; felony murder, robbery; carjacking resulting in death; sevéral robbery-related counts; kidnapping; and felony murder, kidnapping. On September 12, 2002, the government filed a notice of intent to seek the death penalty as to Mitchell based on the 18 U.S.C. § 2119 charge of carjacking resulting in death. Jury selection began April 1, 2003. On the same day, the court severed the joint trial of Mitchell and Orsinger.

Opening statements were given on April 29, and on May 8, 2003, the jury convicted Mitchell on all counts. Mitchell indicated that he did not want to be present during the penalty phase, and his attorneys explained to the court that Mitchell had become uncooperative and was breaking off contact with them. For this reason they felt obliged to withdraw. After time to reconsider, and extended colloquy, Mitchell stated that he saw no benefit or relevance to being there and wished to waive his presence, but did not have a problem with his attorneys.

Accordingly, the court granted Mitchell’s request not to be present but denied counsels’ request to withdraw. The penalty phase began on May 14. The government presented testimony from family members who described what the victims were like and the emotional impact of the murders on them.

The defense presented as mitigating evidence the testimony of family members, friends, and teachers of Mitchell whom they portrayed as an excellent high school student with no disciplinary problems except for a brief suspension for possessing marijuana, who was an outstanding athlete with college football prospects, a leader both in student council and in sports, and respectful towards teachers. FBI agent Duncan also testified. He discussed Mitchell’s confession, noting that Mitchell claimed to have been drinking heavily at the time of the murders.

Duncan also described a separate carjacking and double murder involving Gregory Nakai and Orsinger that took place on the Navajo reservation during which Orsinger pistol whipped the two victims and then shot one of them in the head. Nakai shot the other victim five times. See. United States v. Gregory Nakai, 413 F.3d 1019 (9th Cir.2005), cert. denied, 546 U.S. 995, 126 S.Ct. 593, 163 L.Ed.2d 494 (2005). Evidence was introduced that neither Orsinger nor Nakai would receive the death penalty, and that the Navajo Nation did not condone capital punishment in general or for Mitchell’s crimes in particular.

The jury unanimously found all four “gateway intent factors,” each of the statutory aggravating factors, and one non-statutory aggravating factor with respect to both victims. At least one juror found the existence of each of the mitigating factors. After weighing the aggravating and mitigating factors, the jury recommended imposition of a sentence of death. The court imposed that sentence, and this timely appeal followed. II We first consider Mitchell’s challenges to jurisdiction of the federal court and to application of the Federal Death Penalty Act (FDPA).

He contends that the FDPA does not extend to carjackings committed by one Indian against other Indians in Indian country.

In related arguments, Mitchell also submits that he cannot be sentenced to death under the FDPA because the Navajo Nation never opted into the federal capital punishment scheme, and that applying the FDPA in these circumstances violates the First Amendment and the American Indian Religious Freedom Act of 1978 (AIRFA), 42 U.S.C. § 1996. “Indian tribes initially possessed exclusive jurisdiction over crimes committed by one tribal member against another in Indian' country — even when the crime was murder.... ” David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Federal Indian Law 475 (5th ed.2005).

See also William C. Canby, Jr., American Indian Law 133 (4th ed.2004). Today, by virtue of the interplay between the Indian Country Crimes Act or Federal Enclave Act, 18 U.S.C. § 1152, and the Major Crimes Act, 18 U.S.C. § 1153, federal court jurisdiction extends to certain major crimes committed by an Indian against another Indian, or by an Indian in Indian country, see United States v. Bruce, 394 F.3d 1215, 1220 (9th Cir.2005); United States v.

Anderson, 391 F.3d 1083, 1085 n. 3 (9th Cir.2004), and by virtue of decisional law, federal court jurisdiction extends to intra-Indian violations of federal criminal laws of general, nationwide applicability. Id. at 1085-86; United States v. Smith, 387 F.3d 826, 829 (9th Cir.2004) (stating that federal criminal jurisdiction extends to intra-Indian violations of 18 U.S.C. § 1513(b), retaliating against a witness, as it is a statute of nationwide applicability); United States v.

Errol D., Jr., 292 F.3d 1159, 1164-65 (9th Cir.2002) (observing that the federal government could have charged Indian defendant who burglarized Bureau of Indian Affairs facilitates located in Indian country with 18 U.S.C. § 641, theft of government property); United States v. Begay, 42 F.3d 486, 499 (9th Cir.1994) (holding that a violation of 18 U.S.C. § 371, conspiracy, “applies equally to everyone everywhere within the United States, including Indians in Indian country”).

Mitchell maintains that the Major Crimes Act is the sole source of federal criminal jurisdiction over intra-Indian crimes, and that, because carjacking resulting in death is not one of the crimes identified in the Act, he cannot be prosecuted for it in federal court. However,-we have previously rejected this argument. See, e.g., United States v.

Juvenile Male, 118 F.3d 1344, 1350-51 (9th Cir.1997) (holding that the district court could properly exercise jurisdiction over the charged federal criminal offense of general applicability, despite its not being enumerated in the Major Crimes Act, in an incident occurring between Indians in Indian country). Mitchell’s suggestion that Juvenile Male is contrary to two earlier Supreme Court opinions, United States v. Antelope, 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977), and United States v. Quiver, 241 U.S. 602, 36 S.Ct. 699, 60 L.Ed. 1196 (1916), fails because we are bound by Juvenile Male.

In any event, both Antelope and Quiver involved enclave crimes, not crimes of general applicability. See United States v. Brisk, 171 F.3d 514, 522 & n. 7 (7th Cir.1999) (rejecting identical arguments invoking Quiver and Antelope); see also Begay, 42 F.3d at 499-500 (rejecting the notion that our case law, including United States v. Jackson, 600 F.2d 1283, 1286 (9th Cir.1979), can be read as indicating that federal laws of otherwise nationwide applicability do not apply in Indian country).

Mitchell proposed at oral argument, for the first time, that our precedent is undermined by legal summaries, contained in the legislative history of 25 U.S.C. § 1301, which predate decisions such as Begay. See H.R. Conf. Rep. No. 102-261, at 3-4 (1991); S.Rep. No. 102-168, at 2 (1991). This is not the same statute at issue here. Apart, from the fact that a three-judge panel has no power to do what Mitchell asks, we reject the underlying premise that an attempt (presumably a staffer’

s) to summarize the state of federal jurisdiction over Indian crimes for purposes of a different statute has any authoritative bearing on the question presented here. In addition, relying on Ex Parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883), Mitchell stresses that the federal carjacking statute does not expressly provide for jurisdiction over intra-Indian violations. From this, he would have us infer that Congress did not intend for it to apply to cases such as this.

However, Crow Dog, like Antelope and Quiver, involved the prosecution of an intra-Indian murder charged under federal enclave law; it does not speak to a federal criminal statute that is of general applicability.

Beyond this, the general rule is that a federal statute of nationwide applicability that is otherwise silent on the question of jurisdiction as to Indian tribes “will not apply to them if: (1) the law touches ‘exclusive rights of self-governance in purely intramural matters’; (2) the application of the law to the tribe would ‘abrogate rights guaranteed by Indian treaties’; or (3) there is proof ‘by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations....’” Donovan v.

Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir.1985) (quoting United States v. Farris, 624 F.2d 890, 893-94 (9th Cir.1980)). Mitchell makes no attempt to explain how the federal carjacking statute might fall within one these exceptions, except to suppose that Congress must have intended such an exemption as it employed Interstate Commerce Clause language but not Indian Commerce Clause language in § 2119.

But silence in this (or any other) respect does not manifest intént for the law not to apply to Indian tribes; ■ rather, the baseline is that federal’statutes of nationwide applicability, where silent on the issue, presumptively do apply. to Indian tribes. See Smith, 387 F.3d at 829 n. 5; see also Federal Power Comm’n v. Tuscar ora Indian Nation, 362 U.S. 99, 116, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960) (stating that “a general statute in terms applying to all persons includes Indians and their property interests”).

Mitchell next argues that § 2119 should not apply in this case because its authorization of the death penalty impinges on tribal sovereignty given the Navajo Nation’s longstanding religious and cultural opposition to capital punishment. For this he relies on the Eighth Circuit’s view that “if a particular Indian right or policy is infringed by a general federal criminal law, that law will be held not to apply to Indians on reservations unless specifically so provided.” United States v. Blue, 722 F.2d 383, 385 (8th Cir.1983).

However, Blue itself held that a federal district court had jurisdiction over an in-tra-Indian violation of 21 U.S.C. § 841(a)(1) (distribution of marijuana and possession with intent to distribute) as enforcement of the federal narcotics laws does not impermissibly infringe upon tribal sovereignty or self-government. Id. This is in line with our own decisions applying federal criminal laws of nationwide applicability to Indian tribes. We recognize that the Navajo Nation opposes the death penalty on cultural and religious grounds.

Indeed, the Attorney General of the Navajo Nation expressed the Nation’s opposition to the possibility of the United States seeking capital punishment in this case in a letter sent January 22, 2002 to the United States Attorney for the District of Arizona. We cannot say, however, that ideological opposition to the death penalty by its own force exempts tribal members from, the reach of federal criminal laws, or overrides the presumption that federal criminal laws of nationwide applicability apply to Indian tribes.

Neither do we believe that the FDPA’s opt-in provision for Indian tribes, 18 U.S.C. § 3598, or the lack of an opt-in by the Navajo Nation, renders the carjacking statute inapplicable.

Section 3598 provides: Notwithstanding sections 1152 and 1153, no person subject to the criminal jurisdiction of an Indian tribal government shall be subject to a capital sentence under this

chapter for any offense the Federal jurisdiction for which is predicated solely on Indian country (as defined in

section 1151 of this title) and which has occurred within the boundaries of Indian country, unless the governing body of the tribe has elected that this

chapter have effect over land and persons subject to its criminal jurisdiction. Thus, the FDPA unambiguously requires opt-in only where jurisdiction is based on Indian country, not, as Mitchell would have it, whenever the federal government seeks capital punishment. To construe § 3598 as Mitchell does is inconsistent with the statute’s plain language and the basic canon of statutory construction that qualifying language should not be read out of the statute. See, e.g., Bowsher v.

Merck & Co., 460 U.S. 824, 833, 103 S.Ct. 1587, 75 L.Ed.2d 580 (1983) (applying the “settled principle of statutory construction that we must give effect, if possible, to every word of the statute”). Mitchell insists that a contrary

interpretation defeats the purpose of § 3598 if the government, precluded from seeking the death penalty on the basis of first degree murder, can instead rely on a federal death eligible statute such as § 2119. While a court may refuse to follow the plain language of a statute if it would produce unreasonable results, Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989), it is doubtful that Congress would have intended to carve out special exemptions to Indian tribes for the more than 40 death eligible federal offenses covered by the FDPA without expressly saying so.

See Jones v. United States, 527 U.S. 373, 407, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (providing background information on FDPA) (citing 18 U.S.C. § 3591; §§ 60005-60024, 108 Stat. 1970-1982). Instead, the opt-in provision appears to afford Indian tribes as much authority as states in determining whether capital punishment may be imposed in circumstances not involving federal crimes of general applicability. The federal government seeks and obtains FDPA death sentences in states that have long since abandoned the death penalty themselves. Michael J.

Zydney Mannheimer, When the Federal Death Penalty is “Cruel and Unusual,” 74 U. Cin. L.Rev. 819, 819 (2006) (reporting that “since 2002, five people have been sentenced to death in federal court for conduct that occurred in States that do not authorize the death penalty”); see also 137 Cong. Rec. S8488-03 (daily ed. Jun. 24, 1991) (remarks of Sen. Inouye suggesting that capital crimes will apply without regard to what would otherwise be within the scope of state or tribal jurisdiction).

As there is no reasoned basis for departing from the statute’s plain language, we decline to accept Mitchell’s proffered construction of § 3598. Finally, Mitchell’s assertion that given the Navajo Nation’s religious opposition to capital punishment, sentencing him under the FDPA violates the First Amendment and AIRFA, is raised for the first time on appeal. Although normally we would review for plain error, it makes no difference whether that, or the de novo review which Mitchell seeks, is the appropriate standard because either way, his claims fail.

He makes no showing that the FDPA burdens the free exercise of any Navajo religious belief. In any case, his free exercise challenge cannot succeed because “a rationally based, neutral law of general applicability does not violate the right to free exercise of religion even though the law incidentally burdens a particular religious belief or practice.” Miller v. Reed, 176 F.3d 1202, 1206 (9th Cir.1999) (citing Employment Div. v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)).

Mitchell’s reliance on AIRFA fares no better, as “AIRFA is simply a policy statement and does not create a cause of action or any judicially enforceable individual rights.” Henderson v. Terhune, 379 F.3d 709, 711 (9th Cir.2004). Ill A number of issues are presented that relate to jury selection, both of the venire and the panel. A We start with Mitchell’s contention that the procedures used to empanel jurors in Phoenix for Navajo reservation crimes, while apparently satisfactory in non-capital cases, see United States v.

Etsitty, 130 F.3d 420, 425 (9th Cir.1997), are unsatisfactory for death penalty cases. “[T]he selection of a petit jury from a representative cross

section of the community is an essential component of the Sixth Amendment right to a jury trial.” Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

A defendant establishes a prima facie violation of the fair-cross-section requirement by showing “(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepre-sentation is due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

In Nakai, which involved one of Mitchell’s co-defendants, the court “accepted] for purposes of [that] appeal the argument that Native Americans in Arizona constitute a distinctive group, although our cases suggest that Hopi and Navajo are far from being a unitary ethnic block.” 413 F.3d at 1022. We assume so here as well. Mitchell asserts that his trial was improperly transferred from Prescott to Phoenix, but abandons the point by developing no argument with respect to it.

He does, however, develop his contention that the jury administrator improperly weeded the 2329 jury questionnaires that were returned (out of 3000 sent) down to 263 “actually qualified” persons. Allowing for jurors who were excused mainly without objection, a venire of 207 was set. Mitchell argues that of this pool, only 30 — or 14.49% — were Native Americans.

The district court found, according to the 2000 census, that the adult population of the Prescott Division was 18.64% Native American, that Native Americans comprise 16,7% of the Prescott master jury wheel (from which the jury was drawn in this case), that 17.23% of the 3000 people selected from the wheel in this case resided within Indian reservations, and that 36 of the 207-person venire (17.39%) identified themselves as Native American. Mitchell’s numbers are slightly different but even accepting his, an absolute disparity of 4.15% exists between the venire and the adult population of the division.

This is less than the disparity that we found constitutionally permissible in United States v. Esquivel, 88 F.3d 722, 726-27 (9th Cir.1996) (finding insubstantial an absolute disparity of 4.9% for Hispanics who comprised 14.6% of the adult citizen population in the district but only 9.7% of the master jury wheel). Regardless, “a violation of the fair cross-section requirement cannot be premised upon proof of underrepresentation in a single jury. While juries must be drawn from a source fairly, representative of the community, the composition of each jury need not mirror that of the community.” United States v.

Miller, 771 F.2d 1219, 1228 (9th Cir.1985). Thus, the defendant in Miller failed to satisfy the second prong when he introduced evidence concerning only his particular grand jury venire. Id.; cf. Duren, 439 U.S. at 362, 99 S.Ct. 664 (defendant showed persistent disparity over eight months of weekly venires). Mitchell points to disparities in the trial of Gregory Nakai, in which' 14.1% of the 199-person venire as drawn consisted of Native Americans, but only 6.1% of the pool that reported for duty consisted of Native Americans. Se Nakai, 413 F.3d at 1022.

However, the 6.1% figure was the result of a telephonic procedure used specially in that case, which the court deliberately avoided using in this one. The 14.1% figure provides a second data point, but this alone cannot demonstrate that the under-representation was systematic. Underrep-resentation in the master juror wheel would be systematic, but the Prescott juror wheel has only a 1.94% absolute discrepancy. In Etsitty, we expressed concern with the jury selection process in trials transferred from Prescott to Phoenix.

However, our concerns in Etsitty had to do with the different jury wheels in Phoenix (where Native Americans constitute less of the population) and Prescott (where they constitute more). The district court cured that problem here by using the Prescott wheel. It found there was little reason to suspect that Native Americans in the jury pool would be disparately impacted by the transfer to Phoenix based on local geography and highway access, and Mitchell points to no evidence to the contrary.

Mitchell offers no authority or argument relating the special nature of capital punishment to the need for lower tolerance for disparity in jury pools. Nor is any apparent. The right to a representative jury pool comes from the Sixth Amendment, not the Eighth, and applies to all criminal jury trials. Mitchell also appears to suggest that the striking of various jurors for cause resulted in an unrepresentative jury. However, the Sixth Amendment imposes “no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.

Defendants are not entitled to a jury of any particular composition.” Taylor, 419 U.S. at 538, 95 S.Ct. 692. In Lockhart v. McCree, 476 U.S. 162, 173-74, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), the Court accordingly declined to extend the fair-cross-section requirement to death qualification, or “to invalidate [on fair-cross-section grounds] the use of either for cause or peremptory challenges to prospective jurors” who expressed opposition to the death penalty. In Holland v.

Illinois, 493 U.S. 474, 477-86, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990), the Court similarly distinguished between the venire stage and panel stage, and rejected the claim that a prosecutor’s use of peremptory challenges to remove African Americans from the panel violated the Sixth Amendment right to a representative cross-section. As it explained, “[t]he ‘representativeness’ constitutionally required at the venire stage can be disrupted at the jury-panel stage” to serve a legitimate interest in permitting the disqualification of jurors for reasons related to their ability to serve in a particular case.

Id. at 483, 110 S.Ct. 803; see also Evans v. Lewis, 855 F.2d 631, 634-35 (9th Cir.1988) (“[T]he juror’s removal was part of the process of selecting the petit jury and did not involve the composition of the venire. Therefore, the fair cross-section right did not attach.”); Harris v. Pulley, 885 F.2d 1354, 1371 (9th Cir.1988) (“The fair cross-section rule is limited to the method of summoning the venire panel from which the petit jury is selected.”).

Because Mitchell does not show that the underrepresentation of Native Americans on venires such as his was either substantial or systematic, and because the right to a representative cross-section does not extend to petit jury selection, Mitchell fails to establish a constitutional violation arising out of the procedures that were followed.

B We turn next to issues relating to death qualification and for-cause strikes. i Did the district court violate the equal protection component of the Due Process Clause by engaging in race-based questioning of potential jurors and by making racially-discriminatory decisions to strike? “For over a century, [the] Court has been unyielding in its position that a defendant is denied equal protection of the laws when tried before a jury from which members of his or her race have been excluded by the State’s purposeful conduct ....

Although a defendant has no right to a ‘petit jury composed in whole or in part of persons of [the defendant’s] own race,’ he or she does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria.” Powers v. Ohio, 499 U.S. 400, 404, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (internal citations omitted). The same applies to the federal government under the equal protection component of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

Judges, of course, are state actors, and the obligation to refrain from racial discrimination in the selection of jurors extends to all those state actors “who are trusted with jury selection.” Akins v. Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945). To establish a violation, however, “[a] purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination.” Id. at 403-04, 65 S.Ct. 1276 (articulating principle for a grand jury); see Alexander v.

Louisiana, 405 U.S. 625, 626 n. 3, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) (noting that principles prohibiting exclusion from jury service on account of race “are essentially the same for grand juries and for petit juries”). Thus, Mitchell can establish a violation of his Fifth Amendment rights if he can show purposeful racial discrimination by the district court in striking jurors for cause. Because Mitchell did not raise this issue in the district court, we review for plain error.

Mitchell tries to show purposeful discrimination by suggesting that the judge questioned potential jurors differently depending upon Whether they were Native American or not. We cannot' see how the district court’s voir dire abused its ample discretion. Rosales-Lopez v.

United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (noting that “[b]e-cause the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire”).

The judge inquired of all prospective jurors whether there was anything about Mitchell’s being Native American that would affect their ability to be fair and impartial, which was unquestionably proper, see id. at 191-92, 101 S.Ct. 1629, but sometimes hinged questions of similar import to the common ethnicity shared by the juror and the defendant when the juror indicated that he or she, too, was Native American. This was simply a natural way of eliciting possible bias, and does not show discrimination along facial lines.

In no way did the court’s questioning suggest that it was applying different standards depending upon the juror’s ethnicity. At oral argument, Mitchell attempted to cast his equal protection argument as one under Alexander.

As we explained in Esquivel, an Alexander-type equal protection challenge is somewhat similar to a Sixth Amendment fair cross-section challenge, and requires the defendant to make a prima facie case by showing (1) “that the group, of which the appellant is a member, is ‘one that is a recognizable, distinct class, singled out for different treatment under the laws’ (2) a substantial underrepresentation of the group, “by comparing the proportion of the group in the total population to the proportion of the group called to serve as ... jurors, over a significant period of time”; and (3) discriminatory intent, which may be satisfied by showing that the selection procedure is “susceptible of abuse or is not racially neutral.” 88 F.3d at 725 (quoting Castaneda v.

Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977)). Mitchell fails to establish a prima facie ease because he has not shown substantial underrepresen-tation over a significant period of time and because, as in Esquivel, he has not explained how the venire-selection process was susceptible to abuse. Id. at 727-28. Mitchell appears to assume, as he did with his fair cross-section claim, that the Alexander framework should extend past the venire stage and into strikes for cause.

He offers no authority for doing so, and no persuasive reason why it should. “[A] defendant has no right to demand that members of his race be included” on the final jury, Alexander, 405 U.S. at 628, 92 S.Ct. 1221, and since the record is fully developed as to the basis for each strike, Mitchell must show why each was discriminatory or pretextual. Mitchell complains that of 30 Native Americans who appeared for voir dire, 29 were dismissed by the trial court before peremptories.

However, we consider his appeal only with respect to prospective jurors # 3, # 22, and # 24 because he fails to explain why the others may have been dismissed for race-based reasons. As to them, the district court only pressed questions of racial bias when the jurors gave answers implicating their impartiality, where it was entirely appropriate to do so. The lengthy questioning and discussion relating to # 3 had almost nothing to do with race; he was excused for cause on account of his perceived inability to set aside religious opposition to the death penalty.

Race played some role in the voir dire of # 22, who was a Navajo and who indicated in response to questioning by the government that she thought she was biased for the Native American. Most of the questioning focused on this prospective juror’s stated moral opposition to the death penalty. The district court found from # 22’s answers that it would be “extremely difficult, if not impossible” for her to set aside her opinions regarding the death penalty and that her bias toward Native Americans and against the government was also “troubling.” Both findings are well-supported in the record.

Prospective juror # 24 himself injected race into the voir dire by responding to the court’s inquiry about whether he had an opinion about the death penalty, “Well, as a Native American, this is something that we don’t have in our laws on the reservation:” He thought being Native American would affect his ability to be fair and impartial.

He said that having to sit in judgment of another Navajo would “have a long-term affect on [him] ... emotionally and to a certain extent spiritually,” at least if he were to “come out to a certain result,” bécause Navajo ceremonies are based on- valuing life; therefore, it would be “difficult” for him to sit as a juror against a fellow Navajo. ' He also indicated that he thought it would be wrong for the United States government to put a Navajo to death for murder.

The district court recognized that this last statement was not an automatic disqualifier, but given how difficult # 24 said it would be for him to sit as a juror because of his beliefs, and to sit in judgment on a Navajo, the district court concluded #24 would be substantially impaired from being able to perform his duties.

In this, the court was not impermissibly drawing inferences from #24’s race, but permissibly from his own responses about his beliefs. ii Did the procedures used to select the jury impermissibly exclude jurors on the basis of their Navajo traditional religion and culture, thereby violating the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, and the American Indian Religious Freedom Act of 1978 (AIR-FA), 42 U.S.C. § 1996? On this issue, our review is for plain error as it was not raised in district court.

RFRA “suspends generally applicable federal laws that ‘substantially burden a person’s exercise of religion’ unless the laws are ‘the least restrictive means of furthering [a] compelling governmental interest.’ ” United States v. Antoine, 318 F.3d 919, 920 (9th Cir.2003) (quoting 42 U.S.C. § 2000bb-1(a)-(b)). Mitchell does not identify what specific federal rule or procedure burdened the exercise of Navajo religion.

We understand his argument to be that the rule disqualifying jurors whose traditional Navajo views on the death penalty would prevent or substantially impair the performance of their duties as a juror in accordance with their instructions violates RFRA, because the Navajo religion is opposed to the death penalty. Mitchell points out that the government has no compelling interest in keeping traditional Navajos from serving on juries, or in obtaining a death sentence against a Navajo for a crime arising in Indian country against another Navajo. But this misplaces the focus.

The question is whether a juror is able to follow the law and apply the facts in an impartial way, which is a compelling government interest. And the rule excluding jurors who are unable to do so is the least restrictive means to achieve that end; jurors are not excluded simply because they are opposed to the death penalty on religious grounds, but only if they are unable to set those views aside and apply the law impartially. See Wainwright v. Witt, 469 U.S. 412, 420-26, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

Mitchell simply asserts, without explanation, that AIRFA was also offended, but as we have already noted AIRFA creates no judicially enforceable individual rights. iii Did the district court err by refusing to strike for cause several prospective jurors (# 31-38, except for # 32 and # 34) who were biased in favor of capital punishment? A defendant has a constitutional due process right to remove for cause a juror who will automatically vote for the death penalty. See Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).

But the Supreme Court has made clear that a court’s failure to strike for cause a biased veniremember violates neither the Sixth Amendment guarantee of an impartial jury, Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), nor the Fifth Amendment right to due process, United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), when the biased veniremember did not sit on the jury, even though the defendant must use a peremptory challenge to strike him. Of the veniremembers whom Mitchell challenges, only # 36 sat on the jury.

Mitchell attempts to distinguish Ross and Martinez-Salazar by arguing that his claim is not based on his compelled use of a peremptory challenge, but this only shows that Mitchell has asserted no injury at all. A district court’s refusal to strike a juror challenged for cause is reviewed for abuse of discretion. United States v. Miguel, 111 F.3d 666, 673 (9th Cir.1997). However, our review here is for plain error under Fed.R.Crim.P. 52(

b) because Mitchell did not ask the court to excuse juror # 36 for cause. Cf. United States v. Mendoza-Reyes, 331 F.3d 1119, 1121 (9th Cir.2003) (review of voir dire is for plain error where defendant does not object); United States v. Ross, 886 F.2d 264, 266 (9th Cir.1989) (district court’s treatment of juror reviewed for plain error where defendant made no motion to remove after juror announced desire to leave).

Although in response to one question # 36 indicated that she thought the only punishment for certain kinds of “horrific” crimes should be death, she later qualified that response by indicating “well, death or imprisonment.” Thereafter she said in a number of ways that she could keep an open mind. Neither side moved to strike, and the court did not plainly err in not striking her sua sponte. iv Did the district court err in striking # 39 for cause merely because she expressed conscientious scruples against imposing the death penalty?

A prospective juror may be excluded for cause because of her views on capital punishment when “the juror’s views would ‘prevent or substantially impair the performance of [her] duties as a juror in accordance with[her] instructions and [her] oath.’ ” Wainwright, 469 U.S. at 424, 105 S.Ct. 844 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)).

The juror need not indicate that she would “automatically” vote against the death penalty, nor need the bias be shown with “unmistakable clarity”; the trial court need only be left with a “definite impression that a prospective juror would be unable to faithfully and impartially apply the law.” Id. at 425-26, 105 S.Ct. 844. Deference is owed to the trial judge who sees and hears the juror. Id. Because this rule is grounded in the Sixth Amendment’s guarantee of an impartial jury, and not the Eighth Amendment, exclusions under it are no different from exclusions of jurors for any other form of bias.

Id. at 423, 429, 105 S.Ct. 844. A district court’s decision to excuse a juror for actual bias is reviewed for abuse of discretion. United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir.2000). Prospective juror # 39 gave .answers to the written prescreening questionnaire that show her beliefs about the death penalty would substantially impair her ability to perform her duties.

Among them, she checked the box; indicating she “could never, under any circumstances, return, a verdict which recommended a sentence of death.” She wrote as an explanation for why she couldn’t reach a verdict of guilty as to a crime for which the defendant could be sentenced to death, “No one has the right to take another person’s life—regardless of the evils done'by that person— it reduces society to the level of the evil doer.” She checked boxes reflecting that she would not follow the instructions given by the court in deciding whether a defendant was guilty or not guilty if a death sentence .would result, that her views about the death penalty would prevent her from recommending the death penalty as a punishment, that she would automatically vote to recommend a sentence of life without the possibility of release, that she would not consider all the evidence before making a decision to recommend either a death or life sentence, that she would disregard the law and hold the government to a higher burden of proof than beyond a reasonable doubt, and that she would not want to serve as a juror in this case. • Her oral responses at voir dire were more nuanced; for example, she would ■ have “a difficult time” imposing the déath penalty or followihg related instructions; she,could possibly have sentenced to death Charles Manson and a serial killer from Florida (presumably, Ted Bundy); “off the top of [her] head,” she didn’t think she could set aside her beliefs, but she would be open to listening to all of the evidence; “offhand,” she didn’t think she could fairly consider either sentence, but she couldn’t know for sure without being in the position and seeing the evidence; she would “probably” vote for a life sentence, but wouldn’t automatically vote for a life sentence regardless of the evidence and would keep an open mind; and she would “like to think” she could be open to either death or life and deliberate without prejudgment.

In response to the judge’s final question whether she could set aside her views and listen to the facts and law that the court gives and keep an open mind and consider imposing either sentence if she felt it was appropriate, # 39 responded “I could only try.... I. do feel very strongly about the value of human life, no matter what that life has done. But I — I like, to think I would listen; I would be open. It would be up to the prosecution and the defense to convince me. I can’t give a definitive answer at this time.

I’m sorry.” Although the court found that # 39 tried to be candid, it was left with the “firm impression, based on her demeanor here in court, that she would struggle to the point that I don’t think she would honestly consider the death penalty in accordance with the instruction and her duty as an oath.” In addition, it noted that the questionnaire answers were compelling where # 39 wrote in by hand that no one has the right to take another person’s life, and that she could not follow instructions if a death sentence would result.

Accordingly, the court concluded that # 39 “would be substantially impaired to follow her oath as a juror in this case and follow the law that the Court gives to her,” and so was not qualified. As the overall landscape of # 39’s answers supports a definite impression that she would be unable faithfully and impartially to apply the law, and the district court applied the correct standard in so determining, we- see no abuse of discretion in the dismissal of # 39 for cause.

C The government used a peremptory challenge to strike the only African American member of the venire which was, in Mitchell’s view, contrary to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This followed a strike of a Native American that the court disallowed on Batson grounds. To establish a prima facie case of a Batson violation, a defendant must show “(1) the defendant is a member of a cognizable group; (2) the prosecution has removed members of such a group; and (3) circumstances raise an ‘inference’ that the challenges were motivated by race.” Fernandez v.

Roe, 286 F.3d 1073, 1077 (9th Cir.2002). The burden then shifts to the government to offer a race-neutral ground for the challenge. Finally, the district court determines whether the defendant has proven purposeful discrimination. Id. Although the burden rests with the defendant to prove purposeful discrimination, the court must evaluate the persuasiveness of the proffered justification and determine whether it should be believed. Kes ser v. Cambra, 465 F.3d 351, 359 (9th Cir.2006) (en banc).

Native Americans constitute a cognizable group for Batson purposes, see id., as do African Americans, see Fernandez, 286 F.3d at 1077. Mitchell, a Native American, may raise Batson challenges to the exclusion of African Americans as well as Native Americans. See id. (citing Powers v. Ohio, 499 U.S. 400, 409-16, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991)). Whether the government’s reason for exercising a peremptory challenge is an adequate race-neutral explanation is an issue of law reviewed de novo. See United States v. Steele, 298 F.3d 906, 910 (9th Cir.2002).

The district court’s findings of fact as .to the racially discriminatory use of peremptory challenges are reviewed for clear error. See United States v. Annigoni, 96 F.3d 1132, 1136 n. 3 (9th Cir.1996) (en banc). Whether a defendant has made a prima facie showing of racial discrimination is reviewed for clear error. United States v. Steele, 298 F.3d 906, 910 (9th Cir.2002). The government used its first peremptory strike against the only remaining Native American member of the jury panel.

The district court found that under the totality of the circumstances, the use of a first strike against the only Native American panel member when the defendant and victims were Native American established a prima facie case. The government offered the explanation that the juror indicated he would look to the court for direction at sentencing. The district court found that he was not the only juror to express uncertainty due to lack of knowledge of the law, and that the juror had repeatedly indicated that he would follow the court’s instruction and understood that the court would not direct a sentence.

On that basis, the court found the government’s explanation unpersuasive, and denied the strike. The government then used another peremptory challenge to strike the only African American member of the panel. Responding to Mitchell’s Batson challenge, the government offered the explanation that it struck that juror along with another because both had prior experience on juries that had acquitted defendants.

The district court determined that most of the reasons for finding a prima facie case against the only Native American juror did not apply to the African American juror, and that no prima facie case had been made out. Alternatively, the court found that the government’s explanation was neutral, non-discriminatory, and permissible; that the juror had indicated that he had participated in an acquitting jury in Colorado in the mid-1980s, although he could not recall the circumstances; that the explanation was sufficient; and that Mitchell had failed to carry his burden.

We recognized in Fernandez that the relevant circumstances surrounding strikes include a prima facie case of discrimination as to another cognizable group. 286 F.3d at 1078 (holding that prior strike of an Hispanic prospective juror supported an inference of general discriminatory intent germane to strike of two African Americans). Here, the government struck the only African American venireperson, which is less compelling evidence of discrimination than in Fernandez because two African Americans were struck there and it is more difficult to infer discrimination based on one strike than two.

At the same time, the court here had actually found discrimination by the government in exercising a'strike against a Native American, whereas .the trial court in Fernandez had previously only found a prima facie case. We can’t tell from what it said that the district court factored this into its ruling.

But we need not decide whether, following Fernandez, under the totality of the circumstances, including the prior discriminatory attempt to strike the only Native American juror, the district court’s finding that there was no prima facie case of discrimination as to the African American venireperson was clearly erroneous, because Mitchell does not show how the district court’s alternative finding — that the prosecution’s justification was valid and persuasive — was incorrect. That a juror acquitted in a prior case is a valid, race-neutral reason to strike. See United States v.

Thompson, 827 F.2d 1254, 1260 (9th Cir.1987). Mitchell notes that the acquittal had been 20 years earlier, but the inquiry is not whether the ground is strategically sound, but whether it is believable. Kesser, 465 F.3d at 359. Nor does Mitchell contest the fact that the government had moved to strike another, non-African American juror for the same reason. Cf. id. at 360-61 (discussing comparative juror analysis).

The finding of discrimination where the government used its first strike against the only Native American juror when the defendant and victims were Native American does not compel a finding of pretext against the African American juror when a non-race-based reason is proffered. Therefore, Mitchell’s Batson claim fails.

D Mitchell faults the district court for having alleviated the government’s burden of proving the elements of the MCA crimes beyond a reasonable doubt when it told jurors during voir dire that he was a Native American or Navajo, that the crimes occurred on an Indian reservation, and that the deaths of the victims had been “murders.” In doing so, he posits, the district court informed members of the jury that these elements of the charged crimes were true, thereby impermissibly shifting the government’s burden at trial.

Because Mitchell did not object on this or any other ground in the district court, our review is for plain error. See Mendoza-Reyes, 331 F.3d at 1121. Of course, the government bears the burden of proving every element of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). However, a judge does not plainly err by making a statement in the course of voir dire to determine whether a prospective juror can be fair and impartial in relation to a charge made in the indictment. Mendoza-Reyes, 331 F.3d at 1121. That is all the court did here.

Mitchell never contested that he was a Native American, and, in fact, offered to stipulate to it. Advising the jury that the murder counts were being prosecuted pursuant to the Major Crimes Act was an entirely accurate

summary that shifted no burden at all to Mitchell. The same goes for asking prospective jurors whether testimony or pictures of a graphic nature regarding the murders in this case would affect their ability to be fair and impartial. There was no question that murders had occurred; the question was whether Mitchell was responsible, and the court’s query did nothing to suggest that he had to prove he wasn’t. Indeed, Mitchell’s counsel himself prefaced juror voir dire by relating his “impression that there are certain crimes which, like many people, you would find very troubling and very disturbing to hear about....

And among them might be a crime involving the murder of two people, a nine-year-old and a 65-year-old.” Mitchell submits that structural error of the Sullivan v. Louisiana, 508 U.S. 275, 279-80, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), sort occurred, but Sullivan involved a jury instruction containing an unconstitutional definition of “beyond a reasonable doubt.” No such thing happened here.

The district court instructed the jury that it “must not read into ... anything the court may have said or done any suggestion as to what verdict you should return,” that the defendant was presumed innocent and the government had the burden to prove every element of the charges beyond a reasonable doubt, and that the government had to prove beyond a reasonable doubt that Mitchell was an Indian and that the offenses occurred in Indian Country for all counts under the Major Crimes Act.

Because the district court did not tell the jury that certain facts were established or shift the burden to Mitchell, but rather stated the charges for explanatory and bias-probing purposes at voir dire, and because Mitchell cannot in any event show prejudice, there was no plain error. Cf. Neder v. United States, 527 U.S. 1, 10-11, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (explaining that errors in omitting, misdes-cribing, or conclusively presuming an element of an offense are not structural). E Orsinger was severed from Mitchell’s trial on the morning that jury. selection began.

Mitchell now claims that this decision dramatically changed the nature of the ease for which he was selecting a jury, but at the time did not object or request a continuance. He points to nothing in the record that indicates any effect of this decision on counsel’s strategy or that calls into question his counsel’s judgment in going forward with voir dire. There was no plain error. Nor did the court plainly err in proceeding with jury selection rather than, sua sponte, starting it anew after the severance.

Mitchell argues that his jury was tainted by Orsinger’s participation in drafting the juror questionnaire, listing stipulated juror excusáis, and making arguments at a hearing with respect to for-cause dismissals. Yet he points to no evidence (and does not claim) that he and Orsinger disagreed over -any decision along the way, or that Orsinger took any action that prejudiced Mitchell. No plain error appears.

IV Mitchell sought to suppress his post-' arrest statements on the ground that they were involuntary, and seeks reversal on this footing and because they were taken in violation of his' Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and his right to counsel under the Fifth and Sixth Amendments. A FBI Agent Purscell had been working on the disappearance of the Orsinsger/Na-kai victims, and got an anonymous call on November 2 offering information on those murders and another possible homicide and robbery.

The call turned out to be from Jimmy Nakai, with whom agents met that night. The next day, FBI agents and tribal investigators held a joint meeting at the Gallup FBI office, led by Duncan and Purscell, to share information and discuss courses of action. Tribal investigators had found Slim’s truck, though that incident was still being investigated as missing persons with possible criminal circumstances. At some point Purscell, an FBI supervisor, and an Assistant United States Attorney (AUSA) participated in a conference' call.

It was decided that there was not enough information to obtain probable cause for a federal search or arrest warrant. The AUSA suggested possibly attempting'to seek tribal arrest warrants. One of the tribal investigators thought he could get a tribal warrant, and it was decided that the suspects should be picked up tribally because of concern for public safety. A tribal warrant was in fact obtained, Mitchell was arrested, and FBI agents interviewed him.

Mitchell posits that he was not actually in 'tribal custody when he confessed to FBI agents, but in federal custody, because federal and tribal authorities acted in collusion to circumvent his federally-protected rights to a prompt arraignment, to remain silent, and to the assistance of counsel.

He submits that collusion is evident given that a federally-funded task force conducted the criminal investigation using tribal investigators as “an additional source of manpower,” that the investigation was based on a tip to the FBI, that a tribal arrest warrant was issued only after FBI agents conferred with an AUSA, that this route was chosen as a way to contact Mitchell and interview him, and that FBI agents were the officials who interviewed him three times.

Consequently, in Mitchell’s view, his confessions are inadmissible as they were involuntarily given under 18 U.S.C. § 3501. ' As the government points out, Mitchell did not raise this specific issue at trial. Mitchell requested (and received) a hearing on the voluntariness of his custodial statements.

So did Orsinger., In argument at the first evidentiary hearing, Or-singer’s counsel suggested that the tribal arrest and custody had been a facade orchestrated by the FBI to deprive Orsinger of federal procedural rights for a juvenile, such as the speedy presentation of federal charges to a federal judge and the prompt appointment of counsel. (Orsinger was a juvenile, but Mitchell was not.) During his argument, Mitchell’s counsel said he joined in the remarks of Orsinger’s counsel about “what happened in this case,” adding: “Rather than file federal charges and implicate not only the juvenile rights that [Orsinger’s counsel] said were violated with respect to Mr.

Orsinger, but also the obvious rights that would have attended the filing of federal charges including the right to the immediate appointment of counsel for Mr. Mitchell, essentially Mr. Mitchell was stashed in the tribal jail for more than three weeks on these tribal charges which no one connected with this case believed were ever going to proceed.” Other than this passing comment, Mitchell’s presentation was pitched entirely to Miranda issues. The court issued a reasoned order denying Mitchell’s motion to suppress based on the voluntariness of Miranda waivers.

After the initial hearing, Orsinger filed a motion that addressed the collusion issue inore specifically; Mitchell did not join in this motion. The court ultimately held another evidentiary hearing- on Orsinger’s motion, for which Mitchell and his counsel were present but in which they did not join or participate. The court issued a detailed ruling on delay and collusion issues with respect to Or-singer.

Understandably, it made no findings or conclusions on these issues with respect to Mitchell; and Mitchell neither sought to correct the court’s impression that he did not raise them, nor to adduce evidence and elicit a ruling that would have determined these issues discretely as to him. At most, therefore, our review is for plain error. But even if Mitchell’s passing comment at the first hearing sufficed to piggyback on Orsinger’s pursuit of the point thereafter, no reason appears for the district court to have treated the co-defendants differently.

There is no apparent difference between the two that would affect disposition of the collusion and delay issues that Mitchell now poses. The federal rights that Mitchell asserts were circumvented, found in § 3501 and Fed. R.Crim.P. 5(a)(1), are substantively similar to the corresponding rights for a juvenile in 18 U.S.C. § 5033. Mitchell developed no record that distinguishes his situation from Orsinger’s; indeed, he developed no record on the point at all. Applying our opinion in United States v.

Doe, 155 F.3d 1070, 1076 (9th Cir.1998) (en banc), the district court found on the basis of testimony by federal agents and tribal investigators during the evidentiary hearings that after concluding there was insufficient evidence to obtain federal search or arrest warrants, participants in the November 4 briefing determined there was sufficient evidence to. obtain arrest warrants on tribal charges, and jointly decided on that course in the interests of public safety.

It concluded that Orsinger had not met his burden to demonstrate actual collaboration between federal and tribal authorities to deprive him of his federal procedural rights. Alternatively assuming that Mitchell preserved issues arising out of collusion and delay, and our review is under the normal standards instead of for plain error, we cannot say that the district court clearly erred in its findings or that its conclusion did not follow the law. Mitchell had the burden of showing “actual collaboration” intended to deprive him of federal procedural rights. Doe, 155 F.3d at 1078.

Having heard the agents and investigators who were involved in the decision to seek a tribal warrant testify in Orsinger’s case, the court found that the testimony of Agents Purcell and Duncan was credible.

This means that the difference in rights afforded to those in federal and tribal custody was not discussed, the federal officers concluded there was insufficient evidence to obtain federal search or arrest warrants, the tribal officers- concluded there was sufficient evidence to obtain arrest warrants on tribal charges, both were concerned about public safety, and they jointly decided to pursue a tribal warrant. While the court could have found otherwise, it was not obliged to do so as its findings are not without support in the evidence. See United States v.

Michaud, 268 F.3d 728, 735 (9th Cir.2001) (stating that the district court’s factual determination regarding the existence of collusion is only reversed for clear error). In light of what it found, Mitchell was not functionally arrested on federal charges when he was arrested, and held, by tribal authorities on November 4; put differently, he was not arrested tribally in order to deprive him of federal procedural rights.

Proof of deliberate intent to deprive a suspect of federal procedural rights is required to trigger the protections of § 3501, Michaud, 268 F.3d at 735; Doe, 155 F.3d at 1078, but is lacking in Mitchell’s case. Therefore, he was not federally arrested until November 29. Interviews by federal authorities in the meantime were permissible and statements obtained were admissible. Michaud, 268 F.3d at 734 (so stating with respect to a defendant in state custody); United States v. Percy, 250 F.3d 720, 727 (9th Cir.2001) (so stating with respect to a defendant in tribal custody); see also United States v.

Alvarez-Sanchez, 511 U.S. 350, 358-59, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994) (holding that a person questioned by a federal officer while being held on state charges was outside any protection afforded by 18 U.S.C. § 3501(c)). Given this, to the extent Mitchell maintains that delay alone is enough to require suppression of his confessions, the relevant delay is not the period from November 4 until November 29, but is the period on November 29 between the time when Mitchell was picked up at the tribal jail and when he was presented to the magistrate judge in Flagstaff.

Although Mitchell notes that his statements got progressively more incriminating, with the third— and most incriminating — occurring after his arrival at the federal courthouse but before arraignment, he points to no evidence (and does not argue) that his November 29 confession should have been suppressed under § 3501 due solely to delay that morning. B Mitchell did not object at trial to evidence about the knife that fell out of the pocket of his pants at the Nakai residence, but now maintains that it violated Miranda because he had been arrested at that point but had not yet been advised of his rights.

As Mitchell admitted, the officer probably would not have gone to retrieve his pants if he—Mitchell—had not asked for them. In these circumstances, the officer cannot possibly have believed that asking Mitchell where his trousers were would be reasonably likely to elicit anything incriminating. C Finally, Mitchell asserts that his confessions were involuntary in that agents implied that things would go in a positive way if Mitchell cooperated, and told him he would have the right to have a lawyer appointed for him when, in fact, no appointment was possible for individuals in tribal custody.

The district court credited the agents’ testimony and its findings were not clearly erroneous. Mitchell offered no evidence that he was confused by any promise made by the agents, or that he ever asked for counsel. V Other guilt phase issues center on join-der and discovery; evidentiary rulings that Mitchell claims ran afoul of his rights to confrontation, due process, and a fair trial; the aiding and abetting instruction; and declining to grant a mistrial for misconduct in opening statement and closing argument. A Joinder difficulties permeated pretrial proceedings.

Mitchell, Orsinger, and Gregory Nakai were slated to be tried jointly but Gregory was only charged in the armed robbery counts and Orsinger was only charged in the murder counts. The district court decided to sever Gregory out, but also to keep Gregory and Mitchell together on the robbery counts while Mitchell and Orsinger were left together -on the carjacking counts. Then Mitchell’s trial on the robbery counts was severed from Gregory, and Orsinger was severed on the carjacking counts when Mitchell filed a motion to introduce impeachment evidence against him five days before jury selection was to begin.

The district court then granted the government’s motion to rejoin the robbery and carjacking counts against Mitchell, finding that they were parts of a common scheme and that joinder would cause no prejudice. Mitchell presses error only under Fed.R.Crim.P. 14(a). He has the burden of proving that the joint trial was “manifestly prejudicial” in that his right to a fair trial was abridged. United States v. Lewis, 787 F.2d 1318, 1321 (9th Cir.1986). While he believes this standard is wrong, a three-judge panel has no power to change it.

Applying this standard, the district court was not compelled to exercise its discretion to sever the counts. Evidence on the robbery charges would have beén largely admissible in a separate trial on the carjacking counts. See United States v. Irvine, 756 F.2d 708, 712 (9th Cir.1985) (holding that there is no manifest prejudice in such circumstances); United States v. Kenny, 645 F.2d 1323, 1345 (9th Cir.1981) (same). The carjacking on October 28 provided the get-away vehicle for the robbery on October 31.

The two sets of crimes were part of a common plan or scheme, rendering evidence of one legally relevant as to the other; as the crimes are correlated, knowing about one helps explain the other and so makes it more likely. Mitchell also faults the court for failing explicitly to conduct a Federal Rule of Evidence 403 analysis in determining whether evidence on one set of charges would have been admissible in a trial on the other. However, the court found that limiting instructions (which it gave) would ameliorate the risk of unfair prejudice. Mitchell does not argue this is incorrect.

Further, Mitchell suggests, without supporting authority, that severance was required because the carjacking count was death eligible. But the potential for prejudice turns on the factual evidence relating to that count, not on whether a given count is death eligible. There is no reason to suppose that evidence of the carjacking, which was death eligible, was more prejudicial than evidence of the murder, which was not. Mitchell finally argues that the rejoining of counts so late in the game prejudiced him. We fail to see how.

Mitchell was himself responsible for the late decision, having moved for the first time to introduce prejudicial evidence against his code-fendant only three business days before jury selection was to begin. That prompted the district court to sever Orsinger from Mitchell, and the prospect of having four separate trials prompted the decision to rejoin all of Mitchell’s counts. In sum, joinder of the robbery and murders counts was permissible and declining to sever them was not “manifestly prejudicial” because they were, in fact, related, and the evidence would have come in anyway.

B Mitchell complains that the government committed two discovery violations affecting the guilt phase. We review the district court’s discovery rulings for abuse of discretion. United States v. Danielson, 325 F.3d 1054, 1074 (9th Cir.2003). For reversal, the defendant must show that the district court abused its discretion, and that “the error resulted in prejudice to substantial rights.” United States v. Amlani, 111 F.3d 705, 712 (9th Cir.1997). No plain error appears with respect to his first contention, that he was not given the questions or answers to the polygraph examination.

Mitchell did move for a mistrial when the government sought to introduce anatomical drawings to aid in the medical examiner’s testimony. However, counsel acknowledged that he had been told that diagrams were being made and the district court offered a break, which counsel accepted. In these circumstances, Mitchell’s substantial rights were not affected, nor did the court abuse its discretion in denying a mistrial. C Mitchell finds various violations of the Confrontation Clause in the record. We do not.

We review the district court’s construction of a hearsay rule de novo, and its exclusion of evidence under a hearsay rule for abuse of discretion. United States v. Ortega, 203 F.3d 675, 682 (9th Cir.2000). Alleged violations of the Confrontation Clause are reviewed de novo. United States v.

Ballesteros-Selinger, 454 F.3d 973, 974 n. 2 (9th Cir.2006). i First, Mitchell was not allowed on cross-examination of Agents Kirk and Duncan to elicit exculpatory statements that he made during interviews to the effect that he had cooperated with law enforcement, that he had denied killing anyone, and that he and Orsinger had been drinking in Gallup.

These statements were inadmissible hearsay; as Mitchell was attempting to introduce them himself, they were not party-opponent admissions, nor did the fact that they were made in a more broadly self-inculpatory confession bring them within the statement-against-interest exception. Ortega, 203 F.3d at 682 (citing Williamson v. United States, 512 U.S. 594, 599, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994)). Mitchell asks us to ignore Ortega, but this panel cannot do so.

He also argues that this case should be distinguished because it involves capital punishment, but offers no authority in support of the claim that the hearsay rules operate differently in capital cases. Additionally, he submits that Ortega has been undermined by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), but Crawford is inapposite. Crawford stands for the proposition that it is improper in certain circumstances to admit hearsay testimony against the accused even if it falls into one of the hearsay exceptions.

It says nothing about when a defendant ought to be able to compel the admission of hearsay evidence in his favor. Neither was Mitchell’s constitutional right to cross-examine witnesses severely restricted, nor were his due process rights offended. The inculpatory statements elicited on direct examination of Agents Kirk and Duncan were not taken out of context or otherwise distorted. See Ortega, 203 F.3d at 683 (no violation in such circumstances, when a defendant testifies himself as to exculpatory statements) (citing United States v.

Fernandez, 839 F.2d 639, 640 (9th Cir.1988) (per curiam)); Nakai, 413 F.3d at 1022 (same, without consideration of whether the defendant testified or not). That Mitchell told Duncan he had been drinking had nothing to do with his ability to impeach the agent on the testimony that the agent did give.

And Mitchell’s purported reason for seeking to elicit statements in which he denied killing anyone—the need to clarify and refute Agent Kirk’s testimony that Mitchell lied during questioning&emdash;was removed when the trial court struck that testimony. ii During its opening statement the government referred to statements made by Orsinger and elicited those statements during examination of Agent Kirk. Mitchell argues this ran afoul of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). An alleged Bruton violation is reviewed de novo. United States v.

Angwin, 271 F.3d 786, 795 (9th Cir.2001), overruled on other grounds, United States v. Lopez, 484 F.3d 1186 (9th Cir.2007) (en banc). “Under Bruton and its progeny, the admission of a statement made by a non-testifying codefendant violates the Confrontation Clause when that statement facially, expressly, clearly, or powerfully implicates the defendant.” Id. at 796. However, Bruton applies only where co-defendants are tried jointly, and is inapplicable when the non-testifying codefendant is severed out, as was the case here. See United States v.

Gomez, 276 F.3d 694, 699 & n. 4 (5th Cir.2001) (citing United States v. Briscoe, 742 F.2d 842, 847 (5th Cir.1984) (“For Bruton to apply, however, there must be a joint trial with co-defendants. Briscoe’s trial was severed from that of the other defendants; thus Bruton is inapplicable.”)). iii Evidence came in without objection regarding the license plate of the truck used by the Trading Post robbers; information received by law enforcement from an unidentified informant that Slim’s truck had been in the area of Mitchell’s grandfather’s house; and the value of the goods taken during the Trading Post robber

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