Full opinion text
OPINION MUIR, District Judge. I. Introduction. On September 18, 1996, a Grand Jury sitting in Williamsport, Pennsylvania, returned an indictment charging Defendant David Paul Hammer with first degree murder. On April 9, 1997, the government filed a notice of its intent to seek the death penalty in this case. Mr. Hammer was charged with killing his cellmate, Andrew Marti, while housed in Cell 103 of the Special Housing Unit at the Allenwood United States Penitentiary, White Deer, Pennsylvania. The cause of death was strangulation with a cord braided from a bedsheet. This case was placed on the May, 1998, trial list. Jury selection commenced on May 5, 1998, with a pool of 250 potential jurors and lasted fourteen (14) days. During that period an additional 205 potential jurors were needed. A jury of 12 jurors and 6 alternates was impaneled on June 2, 1998, and on the next day the government commenced its case. On June 11, 1998, .the government rested and the defense commenced its case. The defense presented an insanity defense. Robert M. Sadoff, M.D., the defense forensic psychiatrist testified that Mr. Hammer suffered from multiple personality disorder or as it is now designated dissociative identity disorder. Dr. Sadoff further testified that Mr. Hammer has four alter personalities: (1) Jocko, a violent personality, (2) Tammy, a female personality, (3) Wilbur, a child personality and (4) Jasper, a chimpanzee. In sum, Dr. Sadoff testified that Jocko committed the killing of Mr. Marti and that Mr. Hammer was not legally responsible for the killing. On June 17, 1998, the defense rested and the government commenced its rebuttal case by calling James K. Wolfson, M.D., a forensic psychiatrist employed at the Medical Center for Federal Prisoners, Springfield, Missouri. Dr. Wolfson’s testimony was the opposite of Dr. Sadoff, i.e., Mr. Hammer did not suffer from dissociative identity disorder and that he was responsible for his actions. On June 22, 1998, before the cross-examination of Dr. Wolfson was completed, the court was notified that Mr. Hammer desired to plead guilty. Before entering into a guilty plea colloquy with Mr. Hammer, the court required Mr. Hammer to be evaluated to determine whether he was competent to plead guilty. That evaluation was conducted by Dr. Wolfson and John R. Mitchell, Psy.D., a psychologist at the Allenwood United States Penitentiary, White Deer, Pennsylvania. The court than heard testimony from both Drs. Wolfson and Mitchell which established that Mr. Hammer was competent to enter a guilty plea. On June 22, 1998, Mr. Hammer entered a plea of guilty to the intentional premeditated murder of Mr. Marti in violation of 18, United States Code, Section 1111. As a result of the guilty plea, the penalty phase of the trial commenced on June 30, 1998. On July 23, 1998, the jury retired to deliberate on its verdict and on the next day recommended that Mr. Hammer be sentenced to death. The evidence presented during the trial viewed in a light most favorable to the government establishes that Mr. Hammer bound each limb of Mr. Marti by using the ruse that he would only slightly injure Mr. Marti and obtain a transfer for Mr. Marti to another prison. Mr. Hammer after rendering Mr. Marti helpless put Mr. Marti in a sleeper hold. Testimony from a pathologist established that Mr. Marti struggled in the restraints. Once Mr. Marti was rendered unconscious by the sleeper hold, Mr. Hammer strangled him with a homemade cord. In recommending a sentence of death the jury, as required by statute, found that the government established beyond a reasonable doubt that Mr. Hammer intentionally killed Mr. Marti. The jury also found beyond a reasonable doubt the following two statutory aggravating factors: (1) Mr. Hammer previously had been convicted of two or more State or Federal offenses punishable by a term of imprisonment for more than one year and (2) Mr. Hammer committed the murder of Mr. Marti after substantial planning and premeditation. These two statutory aggravating factors are supported by the record. Mr. Hammer was convicted in 1978 and 1984 in Oklahoma state court of felonies involving the use of weapons. The 1984 conviction involved a shooting with intent to kill. As for substantial planning and premeditation, the testimony of inmate witnesses as well as the evidence of the preparation of the homemade cord establish beyond a reasonable doubt that statutory aggravating factor. The jury also found the following two non-statutory aggravating factors: (1) Mr. Hammer represents a continuing danger to the lives and safety of others in the future because he is likely to commit criminal acts of violence, and (2) Mr. Hammer caused harm to the family of Mr. Marti as a result of the impact of the killing upon the family. These two non-statutory aggravating factors are supported by the record. Documents written by Mr. Hammer as well as his tape recorded statement to a news reporter establish beyond a reasonable doubt that he represents a continuing danger to the lives and safety of others in the future. Also, in one document Mr. Hammer stated that if given the chance he would kill again. As for the harm to the family of Mr. Marti, based on the testimony of family members there is no doubt that such harm was inflicted. The jury after finding two statutory and two non-statutory aggravating factors then considered whether any mitigating factors existed. One juror found that Mr. Hammer committed the offense under severe mental or emotional disturbance, suffers from cognitive deficits, is remorseful for having caused the death of Mr. Marti and has demonstrated acceptance of responsibility for his offense. Twelve jurors found that Mr. Hammer is the product of a violent, abusive and chaotic childhood, that as a young person he attempted to seek help for mental difficulties, that he will be sentenced to life in prison without the possibility of release if a sentence of death is not imposed, and friends and family members of Mr. Hammer will be adversely affected if he is sentenced to death. Six jurors found that as a child Mr. Hammer was a victim of sexual abuse. Three jurors found that the United States Bureau of Prisons and the Oklahoma Department of Corrections are capable of fashioning conditions of confinement such that Mr. Hammer is unlikely to commit criminal acts of violence in the future. Finally, five jurors found that Mr. Hammer even though incarcerated for most of his life has managed to do some good things. The jurors then balanced the aggravating factors against the mitigating factors and concluded that because the aggravating factors sufficiently outweighed the mitigating factors a sentence of death was justified. The recommendation of the jury is supported by the evidence presented during the trial. On Friday, July 31, 1998, Mr. Hammer filed a document entitled “Defendant’s Pro Se Motion for the Discharge of Court Appointed Counsel; and Request For Immediate Sentencing.” In that document Mr. Hammer states that he “has no desire to file any post trial motions or to pursue any appeals of the jury’s verdict or the sentence to be imposed.” On August 3, 1998, a hearing was held on Mr. Hammer’s motion at which time Mr. Hammer addressed this court and repeated his requests that counsel be discharged and sentence be imposed immediately. The government responded by requesting a competency examination. On August 4, 1998, an order was issued directing that Mr. Hammer undergo a competency evaluation at the Medical Center for Federal Prisoners, Springfield, Missouri. On August 5, 1998, counsel for Mr. Hammer filed a motion to withdraw as counsel, or in the alternative for the appointment of additional counsel. By order of August 10, 1998, we denied the motion to withdraw but appointed Stephen C. Smith, Esquire, as additional counsel. By order of September 1, 1998, we continued the date for imposition of sentence originally set for September 17, 1998, until after the competency evaluation of Mr. Hammer was completed and a hearing had been held to determine Mr. Hammer’s competency to discharge his counsel and waive his appeal rights. Mr. Hammer’s motion to discharge counsel and waive his appeal rights has been fully briefed and a hearing was held thereon on October 1, 1998. At that hearing James K. Wolfson, M.D., and John R. Mitchell, Psy.D., reappeared and testified regarding Mr. Hammer’s mental state and competency to discharge counsel and waive his appeal rights. At the conclusion of the testimony of Drs. Mitchell and Wolfson, we entered into an extensive colloquy with Mr. Hammer. Therefore, the motion is ripe for decision. We will also address in this opinion our basis for denying certain penalty phase jury instructions proposed by Mr. Hammer and his motion for a mistrial which was requested after the court interrupted on two occasions the closing argument of defense attorney Ruhnke. The following are the court’s findings of fact, discussion and conclusions of law relating to the hearing held on October 1, 1998. II.Findings of Fact. 1. During his various appearances before this Court over the past two years, Mr. Hammer did not act in any fashion which suggested that he was incompetent. 2. None of the defense experts, including Drs. Sadoff and Gelbort who testified at trial, suggested that Mr. Hammer was incompetent at any time. (Undisputed, hereinafter “U”) 3. None of the three forensic evaluations conducted in Mr. Hammer’s cases beginning in 1978 and continuing through 1997 suggested that Mr. Hammer was incompetent in various criminal prosecutions which he faced including the instant one. (U) 4. None of the psychiatrists or psychologists who also testified at trial, Drs. Mitchell, Karten, and Wolfson, suggested that Mr. Hammer was during the time frames when they saw him, 1995 through 1997, incompetent. (U) 5. Mr. Hammer since July 24, 1998, when the jury returned its recommendation, repeatedly has praised attorneys Ruhnke and Travis for their assistance on his behalf. 6. Following July 24, 1998, Mr. Hammer, in writing, requested the termination of defense counsel’s services as an initial step to being promptly executed as was recommended by the jury. (U) 7. In all of his written submissions or briefs to this Court since July 24, 1998, Mr. Hammer appears to be competent. 8. On July 31, 1998, Mr. Hammer filed a pro se motion seeking to discharge court-appointed counsel Travis and Ruhnke. (U) 9. Mr Hammer’s pro se motion also asked the Court to strike the post-trial motions filed by attorneys Travis and Ruhnke. (U) 10. Mr. Hammer’s pro se motion also asks the Court to set a date for immediate formal sentencing. (U) 11. A hearing on Mr. Hammer’s pro se motion was held on August 3,1998.(U) 12. At the hearing on August 3, 1998, the government requested that the Court order a psychiatric or psychological evaluation of Mr. Hammer pursuant to 18 U.S.C. §§ 4241(a) and 4247(b) and (c). (U) 13. Mr. Hammer has been incarcerated, with the exception of the several times where he was in escape status, for over twenty years. (U) 14. Mr. Hammer, even if the jury had not made its recommendation of July 24, 1998, still faces 1210 years of imprisonment as a result of his criminal convictions in Oklahoma State Court. (U) 15. In one of his written requests to discharge counsel, Mr. Hammer refers to the Roman Philosopher Seneca as well as the German philosopher Neitsche in observing that his desire to accept imposition of the death sentence is a rational one under the circumstances in his particular case. 16. On August 3, 1998, Dr. John Mitchell spoke at length with Mr. Hammer at the Allenwood Penitentiary regarding Mr. Hammer’s mental state and competence. 17. Dr. James Wolfson, who became familiar with Mr. Hammer during an evaluation at the Medical Center for Federal Prisoners in November and December 1997, interviewed Mr. Hammer in August and September, 1998, regarding Mr. Hammer’s mental state and especially his competence to waive counsel. (U) 18. Dr. Wolfson is a highly qualified psychiatrist and is a Diplómate of the American Board of Psychiatry and Neurology with Added Qualification in Forensic Psychiatry. 19. Dr. Mitchell is a highly qualified psychologist. 20. Both Drs. Mitchell and Wolfson on these different occasions and locations reached consensus on a number of matters. (U) 21. Drs. Mitchell and Wolfson agreed that Mr. Hammer was alert and oriented to person, place and time. (U) 22. Drs. Mitchell and Wolfson agreed that Mr. Hammer’s thinking was logical and coherent and there was no evidence of a thought disorder. (U) 23. Drs. Mitchell and Wolfson agreed that Mr. Hammer’s attention and concentration were good and there was no evidence of memory impairment. (U) 24. Drs. Mitchell and Wolfson agreed that Mr. Hammer’s affect was broad in range and he displayed a reflectiveness and confidence emotionally. 25. Drs. Mitchell and Wolfson agreed that Mr. Hammer denied hallucinations and there were no signs of delusional thinking by him. 26. Drs. Mitchell and Wolfson agreed that neither they nor staff either at Allen-wood or Springfield facilities observed Mr. Hammer to be experiencing hallucinations or delusions. 27. Drs. Mitchell and Wolfson agreed that Mr. Hammer denied being influenced by any other person to make his current decision. (U) 28. Drs. Mitchell and Wolfson observed that Mr. Hammer explained he does not have a death wish and his decision to proceed without counsel is not a suicidal act because if he wanted to die, he could have just hung himself in his cell. 29. Drs. Mitchell and Wolfson agreed that Mr. Hammer is willing to accept the consequences of killing Mr. Marti. 30. Drs. Mitchell and Wolfson agreed that Mr. Hammer wishes to be sentenced and executed immediately so as to end the suffering of incarceration and “move on to something better.” 31. Drs. Mitchell and Wolfson agreed that Mr. Hammer “believes there’s something better than this.” 32. Drs. Mitchell and Wolfson agreed that Mr. Hammer acknowledged to them that he has made impulsive decisions in the past, but that his current decision is well thought out, carefully considered, and reaches a reasonable conclusion under the circumstances of his situation. 33. Drs. Mitchell and Wolfson agreed that Mr. Hammer expressed understanding that filing his motion could lead to his speedier death. 34. Drs. Mitchell and Wolfson agreed that Mr. Hammer conveyed his feelings and thoughts about his decision with clarity, commitment, and conviction. 35. Drs. Mitchell and Wolfson agreed that Mr. Hammer did not display signs of any mental illness which was interfering with his ability to make his decision logically and coherently. 36. Drs. Mitchell and Wolfson agreed that Mr. Hammer was found to be free of any mental illness which would interfere with his ability to think rationally and with sound mind about his decision to file his motion to discharge counsel and proceed pro se. 37. Drs. Mitchell and Wolfson agreed that Mr. Hammer clearly understood the nature of the motion he filed, the potential consequences of his motion, and was able to assist in the processes involved with his motion. (U) 38. Although Dr. Mitchell previously testified that Mr. Hammer in his opinion is suffering from a major depressive disorder, recurrent, that he nonetheless finds Mr. Hammer to be fully competent in deciding to discharge his counsel. (U) 39. On or about August 10,1998, Stephen C. Smith, Esquire, was appointed as additional counsel for Mr. Hammer. (U) 40. That subsequent to said appointment, Mr. Hammer has presented himself in his verbal communications, his written motions, and various correspondence, that he desires to discharge attorneys Travis and Ruhnke. (U) 41. Mr. Hammer has asserted that the decision to discharge counsel is his, and his alone. (U) 42. Mr. Hammer’s evaluations by Dr. Wolfson and Dr. Mitchell indicate that Mr. Hammer desires to discharge attorneys Travis and Ruhnke. (U) 43. Mr. Hammer desires to have Stephen C. Smith, Esquire and David A. Ruhnke, Esquire, represent him throughout the duration of all of these proceedings, as co-counsel with Mr. Hammer or as stand-by counsel. (U) 44. Mr. Hammer’s present desire to fore-go an appeal and ask for immediate imposition and the carrying out of the sentence of death is a competent and well-reasoned decision made by him. 45. During the guilty plea proceedings, attorneys Travis and Ruhnke stated that Mr. Hammer’s decision to plead guilty was a competent decision. (U) 46. In a prior proceeding, attorneys Travis and Ruhnke filed a petition seeking to withdraw as counsel to Mr. Hammer, citing a conflict of interest. (U) 47. Attorneys Travis and Ruhnke sought a postponement of the briefing schedule relating to the post-trial motions pending the completion of the court-ordered psychiatric evaluation. (U) 48. The request for postponement of the briefing schedule on the post-trial motions was denied by the Court. (U) 49. On the 15th day of September, 1998, the Court entei’ed an Order denying the post-trial motions filed by attorneys Travis and Ruhnke. (U) 50. During the trial of Mr. Hammer, numerous government witnesses testified that Mr. Hammer was a manipulative person. (U) 51. During the underlying trial, numerous government witnesses testified to lies and fabrications of Mr. Hammer. (U) 52. During the underlying trial, the government developed through witnesses the fact that Mr. Hammer had engaged in numerous scams both in and out of custody. (U) 53. During the underlying trial, Dr. Robert Sadoff testified that Mr. Hammer suffered from dissociative identity disorder. (U) 54. Mr. Hammer has asserted to the Court and asserted to Dr. Wolfson that his decision to discharge counsel is his personal decision and has not been affected by any of the alter personalities including Jocko. (U) 55. During the court’s colloquy with Mr. Hammer on October 1, 1998, Mr. Hammer was highly articulate and coherent. 56. During that colloquy, Mr. Hammer expressed his position and arguments at least as well, if not better, than some attorneys who appear before this court. 57. During that colloquy Mr. Hammer did not evidence any signs of mental incompetence and expressed a strong desire to discharge counsel and proceed pro se. 58. Mr. Hammer also expressed a strong desire to forego an appeal and have the sentence of death carried out expeditiously. 59. Mr. Hammer’s explanation as to his desire to discharge counsel and waive his appeal rights is set forth at length in Dr. Wolfson’s report. That report states in pertinent part as follows: While some of the interview time spent with Mr. Hammer during this evaluation was spent discussing issues of his medical history, and he also brought me up to date on some aspects of his case and discussed some ease law that he felt was important, the bulk of the time was spent discussing Mr. Hammer’s bases for making the various decisions he had made about how he wants his ease to proceed from this point. As had been the case in previous discussions, he expressed himself in a sophisticated and insightful fashion. While I am skeptical of my ability to articulate his viewpoint any better than he does, I will summarize some of what he told me. Mr. Hammer took pains to point out that he was not dissatisfied with his lawyers, I really and truly believe that I had outstanding legal representation. Everybody worked to try to save my life. I didn’t always agree with them, but I wasn’t so pig-headed that I didn’t listen to them. He added that both Mr. Travis and Mr. Ruhnke had pointed out to him that there were some legitimate issues to be raised on appeal, and Mr. Hammer agreed, based on his own assessment, that such issues were present, “My decision is made with full knowledge that there might be some relief if I chose to pursue [post-verdict motions or subsequent appeal].” However, he pointed out that the ultimate outcome, should such appeals be successful, would likely simply be another trial, and that, in terms of sentencing, the best that he could hope for would be a sentence of life without parole, “years and years of incarceration,” which he would already be serving in any event, based on his three consecutive 400-year Oklahoma sentences. In light of the fact that this was the best gain that could be produced, Mr. Hammer related that he found nothing appealing about the prospect of going through a new trial, “For me, this entire process has been one of the most painful experiences of my entire life,” particularly in light of the fact that he personally could find little to fault in the trial he had had already, “No trial is ever perfect. I had a fair trial — I had an extremely fair trial.” He continued, If the case is prolonged, it prolongs the pain and suffering for the defendant and for the victim’s family. To accept the verdict of the jury — it allows me to maintain my dignity and prepare for my own death, on my own terms. The harder one fights to live, the more difficult it becomes to accept death when it comes. Our discussion revisited points Mr. Hammer had made previously about the difference between living a meaningful existence and “merely existing.” He again pointed out that he does not fear death, but that if it would be “a new beginning, it’s worth looking forward to, and if not, it’s still not a loss.” He also mentioned that he had not been able to forgive himself for killing Andrew Marti until he made a public acknowledgment of his responsibility, which took a big load off my mind.” He also added that there would be “something comforting about knowing the time, place, and method of my death,” and he found it ironic that “no one raised this kind of Cain when the jury sentenced me to 1200 years” [in his previous Oklahoma case]. Mr. Hammer also told me, “It’s the law that the sentence get carried out. I owe a debt to Andrew Marti and his family.” When he said this, I responded to him that it seemed to me that he was articulating a fundamental respect for the law, which certainly was inconsistent with his attitude when younger, at least as expressed by his actions then. To this, he conceded that his viewpoint about the law had indeed changed, “It’s just my nature to break the law. As I mature, I try to rein that in and think before I act.” He also related that previous offenses had not been on the scale as the offense conduct in this case, “There’s a big difference between writing bogus checks and first degree murder — I accepted the responsibility for the killing of Andrew Marti, knowing full well that the repercussions might include paying with my own life.” He related that he had taken plenty of time and reflection before deciding this, and that “I have peace with myself, over my decision.” Though Mr. Hammer related that he agreed with the position expressed in one of the law review articles he provided, which analogizes the acquiescence of a condemned prisoner to a terminally ill individual who has come to terms with his own death, and he acknowledged that having some control over his fate was important to him, he also emphasized that that was not the sole reason he adopted his position, “This is not about control ... [though] its a factor to have some control over circumstances.” He related that another important factor was that, “given that society is going to have a death penalty, I don’t believe the death penalty is a deterrent, but if it is ever going to be a deterrent, it has to be carried out in a prompt manner.” He continued on that it would be inconsistent for there to be a death penalty imposed and then not subsequently carry it out, “Why in the fuck prolong it?” In further remarks, Mr. Hammer explained that he would find such conduct hypocritical; he appeared to wish to distance himself from such hypocrisy. Government Exhibit No. 2, Forensic Report prepared by Dr. Wolfson, pp. 13-14. 60. Mr. Hammer’s explanation outlined in Dr. Wolfson’s report was reiterated in part by Mr. Hammer during the colloquy. 61. Mr. Hammer during the colloquy also expressed a substantial understanding of the legal issues that could be presented to the Court of Appeals for the Third Circuit if he took an appeal. 62. Mr. Hammer during the colloquy summarized the potential appealable issues as he understood them. 63. Attorneys Travis and Ruhnke supplemented Mr. Hammer’s rendition of the ap-pealable issues. 64. The issues outlined by Mr. Hammer without any notes during the colloquy included those raised in the three new trial motions filed by attorneys Travis and Ruhnke that (1) one or more representatives of the United States Marshal’s Service provided confidential information to the FBI case agent regarding the identity and location of defense witnesses, (2) the government presented testimony in violation of 18 U.S.C. § 201(c)(2), and (3) there was an inadequate factual basis for his guilty plea. 65. The issues discussed during the colloquy also included challenges to the court’s charge to the jury. Specifically, Mr. Hammer noted during the colloquy that he had requested that the jury be instructed that if the jury was unable to reach a unanimous verdict the court would automatically impose a life sentence and that the court denied that request. Attorney Ruhnke also noted during the colloquy that the court denied a request that the jury be instructed that in order to recommend a sentence of death the jury was obliged to find beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances. 66. Mr. Hammer during the colloquy also noted that there was a potential appealable issue relating to our allowance of testimony from David Walter relating to Mr. Hammer’s future dangerousness. 67. During the colloquy Attorney Ruhnke also supplemented the issues by stating that there was a potential appealable issue relating to the court’s interruption of his closing argument on two occasions. 68. During the colloquy Mr. Hammer was also made aware of potential appealable issues relating to the disposition of pretrial motions and the selection of the jury. 69. Mr. Hammer has previously represented himself in both state and federal court. 70. Mr. Hammer has assisted other inmates with federal appeals. 71. Mr. Hammer has the ability to read and understand the Federal Rules of Appellate Procedure. 72. Mr. Hammer does not suffer from a mental disease or defect which prevents him from understanding the nature and consequences of the proceedings against him or participating in his own defense. 73. Mr. Hammer has the ability to understand the nature and consequences of the proceedings against him and to participate in his own defense. 74. Mr. Hammer’s decision to discharge counsel and proceed pro se and his revocable decision to decline to file an appeal within the statutory period are made knowingly, intelligently and voluntarily. III. Discussion. Mr. Hammer has the right to self-representation so long as he is competent and his decision to waive counsel and proceed pro se is made knowingly, intelligently and voluntarily. Godinez v. Moran, 509 U.S. 389, 396-402, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); Faretta v. California, 422 U.S. 806, 819-21, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The Supreme Court noted in Godinez that “[t]he focus of the competency inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings.” 509 U.S. at 401 n. 12, 113 S.Ct. 2680. A defendant is competent to waive counsel if he has the capacity to understand the nature and object of the proceedings against him. We are satisfied based on the testimony of Drs. Wolfson and Mitchell, our colloquy with Mr. Hammer on October 1, 1998, and our observations of him during the trial and that colloquy that Mr. Hammer is competent to discharge counsel, proceed pro se and decline to file an appeal within the statutory period. A finding that Mr. Hammer is competent is not, however, the end of the inquiry. Mr. Hammer’s decision to waive counsel, proceed pro se, and whether or not to appeal must be made knowingly, intelligently and voluntarily. The “knowingly and intelligently” aspect of the waiver of counsel only requires that the defendant “be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (1975) (citation omitted). “Knowingly and intelligently” should not be confused with “wise.” As one court has noted The Constitution is a seamless web of rights and liberties — not conferred but guaranteed — against the intrusive, offensive, and sometimes paternalistic presence of Big Government. When a criminal defendant elects to stand at the Bar in his own defense, and he does so knowingly, voluntarily, and unequivocally, the court is bound by the Constitution to honor that election, however suicidal it may appear to be. Johnstone v. Kelly, 633 F.Supp. 1245, 1248 (S.D.N.Y.1986)(Brieant, J.), rev’d on other grounds, 808 F.2d 214 (2d Cir.1986), cert. denied, 482 U.S. 928, 107 S.Ct. 3212, 96 L.Ed.2d 699 (1987). In order for a defendant’s waiver of counsel to be voluntary, it must be uncoerced. Godinez, 509 U.S. at 401 n. 12, 113 S.Ct. 2680. A defendant should unequivocally request self-representation, rather than claim such a course of conduct has been thrust upon him involuntarily by whatever circumstances. See United States v. Goldberg, 67 F.3d 1092, 1099-1100 (3d Cir.1995). Mr. Hammer has requested that counsel be discharged and he be permitted to proceed pro se and decide on his own whether to appeal. His request is unequivocal and made knowingly, intelligently and voluntarily. We will, therefore, discharge attorneys Travis, Ruhnke and Smith as counsel of record for Mr. Hammer. However, attorneys Smith and Ruhnke will be appointed standby counsel. IV. Conclusions of Law. 1. The court finds by clear and convincing evidence that Mr. Hammer is competent to discharge attorneys Travis and Ruhnke as his legal representatives, proceed pro se and decide on his own whether to appeal. 2. The court finds by clear and convincing evidence that Mr. Hammer’s request to discharge counsel, proceed pro se and decide on his own whether to appeal is made knowingly, intelligently and voluntarily and not as the result of coercion or duress. V. Jury Instructions. We will now address certain issues raised during the trial. At the conclusion of the evidence in the penalty phase of the trial, counsel for Mr. Hammer requested that the jury be instructed on the consequences of a non-unanimous verdict. Specifically, counsel requested that the jury be instructed that if they were unable to reach a unanimous verdict we would automatically impose a sentence of life in prison. Counsel also requested that the jury be instructed that in order for the jury to recommend a sentence of death the jury had to find beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors. We denied both requests. With regard to Mr. Hammer’s proposed jury instruction relating to the failure of the jury to reach a unanimous verdict, we will first note that 18 U.S.C. § 3593(e) provides in relevant part that “[b]ased upon this consideration [i.e., weighing of the aggravating and mitigating factors or consideration of the aggravating factors standing alone if there are no mitigating factors found to exist], the jury by a unanimous vote ... shall recommend whether the defendant shall be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.” (Emphasis added.) The prior death penalty statute, 18 U.S.C. § 848(k) was not phrased in such an unequivocal fashion. The former statute provides in relevant part “based upon this consideration, the jury by a unanimous vote ... shall recommend that a sentence of death be imposed rather than a sentence of life imprisonment without the possibility of release or some other lesser sentence.” (Emphasis added.) Our denial of Mr. Hammer’s proposed jury instruction relating to lack of unanimity was based primarily on the opinion of the Court of Appeals for the Fifth Circuit in United States v. Jones, 132 F.3d 232 (5th Cir.1998). Louis Jones was convicted in the United States District Court for the Northern District of Texas of kidnapping with death resulting and was sentenced to death. At the end of the penalty phase, Jones requested that the district court instruct the jury that failure to reach a unanimous verdict recommending a sentence of death would result in an automatic life sentence without the possibility of release. Specifically, Jones proposed the following two jury instructions apparently in the alternative: (1) In the event, after due deliberation and reflection, the jury is unable to agree on a unanimous decision as to the sentence to be imposed, you should so advise me and I will impose a sentence of life imprisonment without possibility of release. (2) If, after fair and impartial consideration of all the evidence in this ease, any one of you is not persuaded that justice demands Mr. Jones’s execution, then the jury must return a decision against capital punishment and must fix Mr. Jones’s punishment at life in prison without the possibility of release. Jones, 132 F.3d at 242 n. 8. The district court denied both requests. The Court of Appeal for Fifth Circuit affirmed the death sentence. With regard to the refusal of the district court to give Jones’s proposed jury instructions, the Court of Appeals for the Fifth Circuit stated: The actual jury instruction given by the district court repeated the sentencing options available under the [Federal Death Penalty Act]. The instructions traced 18 U.S.C. § 3593(e) by informing the jury that it could recommend death, life without the possibility of release, or some lesser sentence. The defendant, however, contends that the jury should have been instructed that a failure to reach a unanimous verdict recommending the death penalty would result in the court automatically imposing a sentence of life without the possibility of release. The defendant’s proposed instructions were not substantively correct because the proposed instructions informed the jury that the failure to return a unanimous verdict would result in an automatic sentence of life without the possibility of release. Such is not the case under § 3593, which requires unanimity for every sentence rendered by the jury regardless whether the verdict is death, life without the possibility of release, or, if possible under the substantive criminal statute, any other lesser sentence. Life without the possibility of release was not the default penalty in the event of non-unanimity. On the contrary, the failure to reach a unanimous decision regarding sentencing would result in a hung jury with no verdict rendered. 132 F.3d at 242-43. We find further support for our rejection of Mr. Hammer’s proposed instruction in the case of United States v. Chandler, 996 F.2d 1073 (11th Cir.1993). The Court of Appeals for the 11th Circuit in Chandler interpreted 21 U.S.C. § 848(e), the 1988 death penalty statute enacted by Congress to deal with murders occurring in the setting of a large-scale drug operation to require a district court to impose a life sentence in the event of a non-unanimous jury. However, the Court of Appeals held that “the district court is not required to instruct the jury on the consequences of the jury’s inability to reach a unanimous verdict.” 996 F.2d at 1089. The Court of Appeals further observed that “[o]ur holding is further supported by the general interest the criminal justice system has in unanimous verdicts. Asking the jury to return a unanimous verdict forces jurors to examine their views on the case and engage in discussions and deliberations as they attempt to resolve their differences.” Id. Our rejection of Mr. Hammer’s jury instruction relating to the consequence of the jury failing to reach a unanimous verdict is further supported by the case of Green v. French, 143 F.3d 865 (4th Cir.1998). In that case a habeas corpus petitioner asserted that the lack of an instruction to the jury on the consequences of a deadlock could produce coercion. The Court of Appeals for the Fourth Circuit rejected that argument and held that “a court may reasonably refuse to instruct a capital sentencing jury as to the consequences of deadlock in order to promote jury deliberation.” Id. at 890. Although our research has revealed that some state courts — Delaware, New Jersey and Louisiana — require an instruction similar to that requested by Mr. Hammer, other state courts — North Carolina, Florida and Alabama — do not require such an instruction. However, state law is not controlling. This is federal death penalty case. We are still of the opinion that the plain wording of the statute and the Jones, Chandler and Green cases strongly support our denial of Hammer’s proposed jury instruction relating to the consequences of the jury failing to reach a unanimous verdict. We will now explain why we denied Mr. Hammer’s request that the jury be instructed that in order for the jury to recommend a sentence of death the jury had to find beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors. The United States Supreme Court in Zant v. Stephens, 462 U.S. 862, 875, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) noted that in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) the Court approved a “capital sentencing statute even though it clearly did not channel the jury’s discretion by enunciating specific standards to guide the jury’s consideration of aggravating and mitigating circumstances.” In footnote 13 of the Zant opinion the Court stated that “specific standards for balancing aggravating against mitigating circumstances are not constitutionally required.” In Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) the Court again noted that “we have never held that a specific method of balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.” As recently as 1994, the Court held that 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). Several Courts of Appeals have considered whether the reasonable doubt standard should be engrained on the weighing process of a capital sentencing scheme. The Court of Appeals for the Ninth Circuit rejected a contention that “the state must prove beyond a reasonable doubt that the death penalty is appropriate.” Harris v. Pulley, 692 F.2d 1189, 1194 (9th Cir.1982). The Court of Appeals further stated in Harris: The United States Supreme Court has never stated that a beyond-a-reasonable-doubt standard is required when determining whether a death penalty should be imposed.... Moreover, we are not aware of any instance where a state must carry such a burden of proof when attempting to convince a sentencing authority of the appropriate criminal sentence. If the Supreme Court had intended for the burden in death-penalty cases to vary from the standard burden in all other criminal sentencing, it would have said so in one of the many modern cases dealing with the death penalty. 692 F.2d at 1195. The Harris decision was overturned by the Supreme Court on other grounds. Pulley v. Harris, 465 U.S. 37, 43, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). In reversing Harris the Supreme Court noted, without disapproving of, the Court of Appeals’ holding that the reasonable doubt standard is not constitutionally required to be engrained on the weighing or balancing process of a capital sentencing scheme. 465 U.S. at 41 n. 4, 104 S.Ct. 871, 79 L.Ed.2d 29.; see also Gerlaugh v. Lewis, 898 F.Supp. 1388, 1421 (D.Ariz.1995)(state is not constitutionally required to prove, or sentencing court to find, that aggravating factors outweigh mitigating factors by proof beyond a reasonable doubt), aff'd. 129 F.3d 1027 (9th Cir.1997); Bonin v. Vasquez, 807 F.Supp. 589, 620-21 (C.D.Cal.1992)(Constitution does not require jury in penalty phase of capital case to find that aggravating factors outweigh mitigating factors beyond a reasonable doubt), aff'd. 59 F.3d 815 (9th Cir.1995). The Court of Appeals for the 11th Circuit has also rejected the claim that the reasonable doubt standard should be engrained on the weighing process. Ford v. Strickland, 696 F.2d 804 (11th Cir.1983). That Court stated that the petitioner’s argument “confuses proof of facts and the weighing of facts in sentencing.” 696 F.2d at 818. The Court further explained: While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard, the relative weight is not. The process of weighing circumstances is a matter for judge and jury, and unlike facts, is not susceptible to proof by either party. Petitioner’s contrary suggestion is based on a misunderstanding of the weighing process, the statute and the guiding and channeling function identified in Proffitt v. Florida, 428 U.S. at 258, 96 S.Ct. at 2969. Indeed, it appears no case has applied In re Winship in the manner Ford urges. The North Carolina and Utah cases cited by him which imposed a reasonable doubt standard in this situation turned on construction of state statutes rather than the due process rationale of In re Winship. Id. The Court of Appeals for the 11th Circuit again addressed the issue in United States v. Chandler, supra. The Court of Appeal stated: That the jury need only be instructed that the aggravating factors sufficiently outweigh the mitigating factors is entirely appropriate. A capital sentencing scheme is constitutional even if it does not require that a specific burden of proof govern the jury’s weighing process. 996 F.2d at 1091. As previously noted Chandler involved the 1988 death penalty statute enacted by Congress to deal with murders occurring in the setting of a large-scale drag operation. The Court of Appeals for the 10th Circuit has also addressed the issue. Andrews v. Shulsen, 802 F.2d 1256 (10th Cir.1986). In Andrews the Court held that “sentencing authorities may determine a defendant’s fate without regard for burdens of proof or other measures of certainty.” Id. at 1264. In a well-known case tried in the 10th Circuit, United States v. McVeigh, 96-CR-68-M (D.Colo.), the defendant, Timothy James McVeigh, requested a jury instruction similar to that requested by Mr, Hammer. McVeigh requested that the jury be instructed that “[ojnly if you are unanimously persuaded beyond a reasonable doubt that the aggravating factors so outweigh the mitigating factors that justice cannot be done by any sentence less than death can you return a decision in favor of capital punishment.” Brief of the United States Regarding Weighing Process and Mitigating Factors filed in the McVeigh case, 1997 WL 312093 (D.Colo.Doc.). Judge Richard P. Match did not so instruct the jury. Official Trial Transcript, Closing Arguments and Jury Instructions in the McVeigh case, 1997 WL 312609 (D.Colo.Trans.). Finally, the language of the death penalty statute, 18 U.S.C. § 3593(e), itself gives no indication that a reasonable doubt standard is required. The language of the statute instructs that the capital sentencer need only find that the aggravating factors “sufficiently outweigh” all the mitigating factors. Congress clearly identified the standard to be used in the weighing process, and by so doing excluded other standards, specifically the reasonable doubt standard. This conclusion is further supported by Congress specifically setting forth the reasonable doubt standard in other parts of the statute, e.g., a jury cannot find that an aggravating factor exists unless the jury is convinced beyond a reasonable doubt that the aggravating factor is present. When Congress intended the reasonable doubt standard to be applicable it so specified. See 18 U.S.C. §§ 3591(a)(2) and 3593(c). VI. Court’s Interruption of Defense Counsel’s Closing Argument The government and the defense were each allotted by the court a total of % hours for closing argument. The government’s closing was split 3$ hours for initial argument and 1 hour for rebuttal. On July 21, 1998, at 10:00 a.m. the court charged the jury regarding the legal principles which apply to the ease. At the conclusion of the charge the government commenced its initial closing argument which was completed at approximately 4:20 p.m. At that time attorney Ruhnke requested that he have five minutes with the jury “so Mr. Martin is not the only one to have spoken to them today----” The court permitted attorney Ruhnke to commence his closing argument. What transpired after Mr. Ruhnke commenced his closing argument is as follows: MR. RUHNKE: I will only take five minutes of your time today, but I wanted to talk to you before you leave for the night, because you’ve just heard a representative of your government, my government, spend the better part of a day advocating for the death of a human being. I mean that is what this is about, and that is what you have heard today. You’ve heard a representative of your government take the boundaries of responsible advocacy, that is argument— THE COURT REPORTER: I’m sorry, could you speak up. THE COURT: Yeah, I couldn’t hear the last phrase either. MR. RUHNKE: To take the boundaries of responsible advocacy and stretch them to their absolute limit in order to try to convince you to sentence another human being to death. THE COURT: May I see counsel? (Whereupon, the following occurred at sidebar between the Court and counsel.) THE COURT: I think that is grossly improper argument. I have never heard anything like it before. MR. RUHNKE: I didn’t say exceeded the limits, Your Honor, I said stretched the limits to the outer boundaries— THE COURT: I said I think it’s extremely bad and we’re going to give you four more minutes but I don’t want to hear any more like that. MR. RUHNKE: I think it’s fair comment. THE COURT: I am directing you to go forward. If you don’t, we’re going to send this jury home. (Whereupon, the discussion held at sidebar between the Court and counsel concluded.) MR RUHNKE: When a jury hears the kinds of arguments that it’s heard today, it’s possible to begin to hate another human being, it’s possible to begin to hate Mr. Hammer. THE COURT: May I see counsel? (Whereupon, the following occurred at sidebar between the Court and counsel.) THE COURT: Now, we are not going to permit this kind of argument in this Court. I never heard anything like it. I am going to send this jury home and I don’t want any more of it tomorrow. And if I hear more of it tomorrow I’m going to cut you off. Do you understand that? MR. RUHNKE: Your Honor, I understand you very well. THE COURT: All right, that’s the end of it. Take your seat. (Whereupon, the discussion held at sidebar between the Court and counsel was concluded.) After the conference at sidebar was concluded, the jury was given certain instructions, including an instruction not to discuss the case, and excused for the day. Attorney Ruhnke then requested that the court grant a mistrial because of the interruption of his closing. The request was denied. The court’s comments in the instant case were conveyed to attorney Ruhnke out of the hearing of the jury. The court interrupted attorney Ruhnke to limit him to remarks that could fairly be considered supported by the evidence. At no point during the government’s closing was it suggested by government counsel that the jurors should be governed by hate or that they should hate Mr. Hammer. On July 21, 1998, when we interrupted attorney Ruhnke’s closing argument we were of the opinion that he was attempting to prejudice the jury by a claim of an overreaching prosecution. The closing by government counsel was entirely proper and in no way even approached taking the boundaries of responsible advocacy and stretching them to their absolute limit. Attorney Ruhnke was contending that the government went beyond the boundaries of proper argument. The boundaries of proper argument are set and cannot be stretched. An attorney either remains within the boundaries of proper argument or goes outside of them. The statements of attorney Ruhnke were not proper comment on the evidence presented during the trial. Furthermore, they were in the view of the undersigned an inappropriate attack on opposing counsel. On July 22, 1998, attorney Ruhnke commenced his closing argument at 10:00 a.m. Attorney Travis concluded the closing argument for the defense at approximately 10:20 a.m. on July 23, 1998, at which time the government presented rebuttal argument. On July 23, 1998, it was brought to the court’s attention that the jury may have overheard what was said at sidebar on that day. The secrecy of sidebar conferences in this court is always preserved by a noisemaker activated by the court reporter. The court inquired of the jury if they had overheard anything that was discussed at sidebar that day, on July 22 or on July 21, 1998. None of the jurors answered in the affirmative. Statements made during closing argument must be supported by the record and a trial judge has broad discretion to control the scope and content of closing argument. United States v. Pool, 660 F.2d 547, 561 (5th Cir.1981). If comments are made by counsel during closing argument that are not supported by the record, the trial judge is permitted to interrupt counsel. Id.; see also United States v. Jimenez-Diaz, 659 F.2d 562, 569 (5th Cir.1981)(“When counsel voiced his personal opinion about agent’s conduct, the court simply cautioned him, quite appropriately, to confine his argument to conclusions he wished the jury to draw from the evidence.”). Only in rare circumstances will the court’s interruptions of a defense counsel’s closing argument call for a new trial. See United States v. Moreno-Pulido, 695 F.2d 1141, 1146 (9th Cir.1983); see also United States v. Busic, 592 F.2d 13, 28-29 (2d 1978)(even where the cou’t interrupted the closing argument of defense counsel 44 times a new trial was not granted). The Court of Appeals for the Ninth Circuit has held that a new trial is only warranted when the record reveals actual bias on the part of the trial judge or an appearance of advocacy or partiality is projected to the jury. United States v. Mostella, 802 F.2d 358, 361 (9th Cir.1986). Likewise, the Court of Appeals for the Seventh Circuit stated “that to warrant reversal because of a trial judge’s comments during defense counsel’s closing argument, ‘it must appear that the conduct [of the trial judge] measured by the facts of the case presented together with the result of the trial, was clearly prejudicial to the rights of the party.’ ” United States v. Briggs, 700 F.2d 408, 414 (7th Cir.1983)(quoting United States v. Eldred, 588 F.2d 746, 750 (9th Cir.1978)). The Court of Appeals for the Seventh Circuit further observed that a judge has the right and often the obligation to interrupt closing argument in order to insure a fair trial. Briggs, 700 F.2d at 414. That is exactly what was done here. In the Briggs case defense counsel made a statement “that it was a ‘crime’ that [his client the codefendant to Briggs] should be charged with the offenses in the indictment.” Id at 415. The Court of Appeals observed that that statement “if not actually going beyond the range of proper argument, it certainly borders on the same.” Id. The Court of Appeals than held that “[i]n the trial of a lawsuit where defense counsel makes improper suggestions to the jury and his statements go beyond the range of what a judge determines is proper ... it is well within the discretion of the trial judge to advise and caution defense counsel during the argument, as to the appropriateness of his remarks.” Id. at 415. The Court of Appeals further held that “even if it had been error for the trial judge to interrupt ... counsel during closing argument ... before conduct of the trial judge rises to the level of reversible error, the defendant must demonstrate that the judge’s conduct was prejudicial and substantially interfered with the defendant’s rights.” Id. As noted, our remarks to attorney Ruhnke were made out of the hearing of the jury. Furthermore, defense counsel were given 4 $ hours for closing argument. The court did not interrupt that 4$ hours other than for needed recesses for the jury. Moreover, at the conclusion of closing argument and before the jury was sent out to deliberate, the court instructed the jury as follows: Before you retire to the jury room to deliberate, I want to reemphasize a few final cautionary instructions in this extremely serious case. You are to perform your duty as jurors without bias or prejudice as to either party. The law does not permit jurors to be governed by fear, favor, emotion, prejudice, or public opinion. Mr. Hammer, the government and the public expect that you will carefully and impartially consider all the evidence in the case, follow the law as stated by the court and reach a true and just decision. Anything that I may have said or done during the trial should not be taken as an indication that I have an opinion regarding how you should answer or complete the Special Findings form. That is your sole and exclusive responsibility. I in fact have no such opinion. I have carefully refrained from forming any such opinion. You are to follow scrupulously the court’s instructions which were read to you. You will each have a copy of the instructions in typewritten form during your, deliberations. In order that your findings are complete and consistent with each other, it is extremely important with respect to any question on the Special Findings form that you carefully follow the instructions relating to that question. Consequently, we are satisfied that the court’s two interruptions of attorney Ruhnke’s closing argument on July 21, 1998, were completely proper and totally irrelevant to the outcome of the case. The denial of the motion for a mistrial based on the court’s interruption of Mr. Ruhnke’s closing was justified. The motion was completely devoid of merit. APPENDIX A IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA v. DAVID PAUL HAMMER No. 4:CR-96-239 (Judge Muir) ORDER September 15, 1998. THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: On July 24,1998, a jury recommended that David Paul Hammer be sentenced to death. On August 3, 1998, Hammer filed three motions for a new trial. The motions are fully briefed and ripe for disposition. Fed.R.Crim.P. 33 states in pertinent part: “The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice.” A defendant bears the burden of persuading the trial court that the interest of justice requires the grant of a new trial. United States v. Geders, 625 F.2d 31, 33 (5th Cir.1980). The decision to grant or deny a motion for a new trial lies within the discretion of the trial court. United States v. Anderson, 76 F.3d 685 (6th Cir.1996). In the first motion Hammer claims that one or more representatives of the United States Marshal’s Service provided confidential information to the FBI ease agent regarding the identity and location of defense witnesses. Defense counsel filed ex parte and under seal applications for writs of habe-as corpus ad testificandum. Defense counsel also provided the court with proposed writs of habeas corpus ad testificandum (Docs. 376 through 385). The court signed those proposed writs and the Clerk’s Office delivered them to the United States Marshal’s Service. Those writs did not state that the writs were filed under seal or instruct the United States Deputy Marshals to keep the contents of the writs confidential. The Clerk’s Office only delivered copies of the writs to the United States Marshal’s Service and did not provide the United States Marshal’s Service with copies of the applications for the writs. Consequently, there is no basis for a claim that any Deputy United States Marshals violated a requirement that the contents of the writs be kept confidential. Moreover, assuming that the Deputy United States Marshals had notice of their obligation to keep the contents of the writs confidential, the remedy is not the grant of new trial because there has been no showing of prejudice resulting from any alleged disclosure. Cf. United States v. Starusko, 729 F.2d 256, 264 (3d Cir.1984). A new trial is not required in the interest of justice based on Hammer’s claim that one or more representatives of the United States Marshal’s Service provided confidential information to the FBI case agent regarding the identity and location of defense witnesses. In the second motion for a new trial Hammer claims that the prosecution presented testimony in violation of 18 U.S.C. § 201(c)(2). That provision provides that (e) Whoever— ‡ ‡ ‡ $ (2) directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or for or because of such person’s absence therefrom; sfc shall be fined under this title or imprisoned for not more than two years, or both. During the guilt phase of the trial, the government called as witnesses two federal inmates, Steven Classen and Leonard Yager. Hammer contends that the government by making certain promises to inmates Classen and Yager in exchange for their testimony provided unlawful gratuities to them in violation of § 201(c)(2). The prosecution does not dispute the essential factual basis surrounding Hammer’s claim. Both inmates testified with the understanding that their cooperation could result in transfers to safer and lower security prisons as well as reduction in their sentences, if found to be appropriate by the United States Attorney’s Office which prosecuted them and their sentencing judges. Hammer relies on a recent opinion issued by the Court of Appeals for the Tenth Circuit. See United States v. Singleton, 144 F.3d 1343 (10th Cir.1998). However, that opinion was vacated and rehearing en banc was ordered by the Court of Appeals. Furthermore, the opinion has been criticized and disapproved of by several district courts. See, e.g., United States v. Arana, 18 F.Supp.2d 715, 1998 WL 420673 (E.D.Mich.1998). The Singleton panel’s conclusion that prosecutors commit a federal criminal offense when they engage in the common practice of offering lenity for a witness’ truthful testimony was an extreme and radical departure from history, practice, and established law. Not only did the panel make a criminal out of nearly every federal prosecutor — and accomplices out of district judges — it suppresses highly relevant evidence and cripples enforcement of federal criminal law. Congress did not intend that result. In 1962 when revising § 201 into its current form, Congress made bribing a witness a separate offense, but gave no indication it intended to include under the new gratuity statute prosecutors who engage in the then common practice of offering leniency to cooperating witnesses. Instead, the legislative history of this revision states it “would make no significant changes of substance.” S.Rep. No. 2213, 87th Cong., 2d Sess. (1962), reprinted in 1962 U.S.C.C.A.N. 3852, 3853. In the matter of United States v. Birchfield, et a