Full opinion text
ORDER ORINDA D. EVANS, District Judge. This federal death penalty case is before the Court for a ruling on Defendant’s motion pursuant to 28 U.S.C. § 2255. Defendant seeks to set aside his conviction and his sentence. The Court having heard the evidence at trial, the evidence presented in support of Defendant’s habeas claims, and having the benefit of the arguments of counsel will set forth below its legal conclusions and, where specifically indicated its findings of fact. For the reasons stated, Defendant’s motion is DENIED. TABLE OF CONTENTS I. INTRODUCTION.1097 II.CONSTITUTIONALITY OF THE FEDERAL DEATH PENALTY ACT, 18 U.S.C. §§ 3591-3597 . 05 05 O 1-H A. Defendant’s Challenge to His Sentence. 05 05 O t — I B. Constitutionality of the Federal Death Penalty Act under the Fifth Amendment Indictment Clause . CO © C. Challenge to the FDPA’s Evidentiary Standard. io © III. COMPETENCY-RELATED CLAIMS.1107 A. Authority of Magistrate Judge to Preside at Competency Hearing.1107 B. Substantive Competency Claim .1108 1. Competency Proceedings.1109 2. Trial Proceedings.1120 3. Kearns’ Declaration.1122 4. 2002 Psychiatric Report.1123 5. Findings and Conclusions.1125 C. Continuance to Permit Further Competency Evaluation.1128 IV. CONTROL OF DEFENSE OF INSANITY.1129 V. CLAIMED INVESTIGATIVE FAILURES OF COUNSEL.1137 A. Adequacy of Social History Investigation.1137 B. Mitigating Mental Health Evidence.1143 Pesticide Exposure.1149 Defendant’s Odd Behavior While in Prison Before the Murder.1150 Defendant’s Complaints of Implants before Washington’s Murder.1151 1. Complaints to Inmates.1151 2. Complaints to Family Members .1156 Findings and Conclusions .1161 p VI. FAILURE TO PROVIDE INFORMATION TO MENTAL HEALTH EXPERTS . rH CO rH rH A. Disciplinary Records. rH CD rH rH B. Chaotic and Violent Environment at USP-Atlanta. Cm CO rH rH C. CT Sean Results. CO CD rH rH 1167 D. Information Concerning Defendant’s Social/Family Background and the Development of His Mental Illness MISCELLANEOUS OTHER CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL IN VARIOUS STAGES OF THE CRIMINAL PROCESS .1168 VII. Preindictment Phase.1169 A. Pretrial Phase.1169 B. 1. Limitation on Butner Evaluation .1169 2. Neurological Examination.1170 3. Continuance of Trial.1170 4. Exclusion of Robert Willis’ Testimony.1171 5. Appointment of a Treating Psychiatrist.1173 6. Testimony of Counsel at Competency Hearing.1174 7. Daubert Hearing.1175 8. Failure to Coordinate Work.1176 Trial Phase 1178 .1178 1. Voir Dire. .1179 2. Change of Clothes. .1179 3. Expert Testimony on Effect of Defendant’s Mental Illness. .1180 4. Expert Explanation of Outburst in Courtroom And Defendant’s May 6,1995 Telephone Conversation with His Father. .1180 5. Failure to Call John Pannell as a Trial Witness. .1181 6. Evidence that the Government Can Safely Incarcerate Defendant.. 7. Conditions of Defendant’s Confinement at the Atlanta Pretrial Detention Center. CO OO T — 1 t — i 8. BOP Role in Bringing About Washington’s Death. CO 00 T — I rH .1184 9. Preparation of Defendant to Testify at the Guilt Phase and Penalty Phase of the Trial. .1185 10. Deterioration of Defendant at Trial. .1185 11. Failure to Call Dr. Rogers as Part of Defendant’s Case in Chief.. .1186 12. Failure to Investigate, Seek to Set Aside, and Mitigate 1987 Conviction. .1187 13. Exclusion of Donovan Testimony. .1188 14. Jury Instruction On Unadjudicated Criminal Conduct. .1189 15. Jury Instruction that Life Sentence Defendant was Serving was a Parolable Offense. VIII. JUROR MISCONDUCT ... h- CO o A. Jurors Sleeping. 1-J. CO o B. Other Juror Misconduct ) — t CO to 1. Presence of Bible and Discussion of Religious Scripture During the Trial. 2 2. Presence of Alternate Jurors During Guilt Phase Deliberations H 3. Premature Penalty Deliberations. H 4. Cumulative Effect of Jury Misconduct. H IX. TRIAL COURT ERRORS .1194 A. Limitation on the Penalty Phase Testimony of Defense Social Historian and Social Worker Jan Vogelsang.1194 B. Discharge of Jurors Craft and Tooley.1196 C. Refusal to Permit Juror Craft to Attend the Trial after She was Dismissed as a Juror.1197 D. Failure to Instruct the Jury on the Consequences of a Not Guilty by Reason of Insanity Verdict.1198 E. Insufficient Evidence of “Heinous, Cruel and Depraved” Aggravating Circumstance.1199 X. BIAS OF TRIAL JUDGE.1200 XI. PROSECUTORIAL MISCONDUCT.1201 XII. CONFLICT ISSUES. to o A. Drs. Johnson and Hazelrigg K o B. Trial Counsel. to o 1207 XIII. VIOLATION OF RIGHT TO MEANINGFUL APPELLATE REVIEW 1207 XIV. NEW TRIAL REQUEST. 1209 XV. CUMULATIVE EFFECT OF ERRORS. XVI. DEATH PENALTY CRUEL AND UNUSUAL. 1209 XVII. CONCLUSION. 1209 I. INTRODUCTION On November 21, 1995, Defendant was charged in a indictment with the murder of D’Antonio Washington, in violation of 18 U.S.C. § 1118. The indictment charged that: [o]n or about December 21, 1994, [Defendant] while confined in a federal correctional institution, the United States Penitentiary at Atlanta, Georgia, under a sentence of life imprisonment ... did unlawfully and with malice aforethought commit the murder of D’Antonio Washington, by beating [him] with a hammer Defendant entered a plea of not guilty on December 4, 1995. He simultaneously filed a notice of intent to rely on the defense of insanity at the time of the offense. On July 26, 1996, the Government filed the statutorily required Notice of Intent to Seek the Death Penalty. See 18 U.S.C. 3593(a). The notice referenced the intent or gateway factors in 18 U.S.C. § 3591(a)(2) and listed five statutory aggravating factors along with several non-statutory aggravating factors which the Government sought to prove during the proceedings. After a determination of Defendant’s competency to stand trial, the trial began on February 21, 1997. The primary issue at the guilt-innocence phase of the trial was whether Defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts at the time of commission of the murder. See 18 U.S.C. § 17(a) (defining insanity defense). The Government’s experts opined that Defendant has a mixed personality disorder, with schizotypal, paranoid, and antisocial features and that Defendant was malingering, ie., faking his claimed delusion of having implants which harassed him and monitored his thoughts. The defense experts testified that the Defendant is a paranoid schizophrenic, and that he likely was having a psychotic episode at the time of the murder. The jury was instructed that the defense had the burden of proving the defense of insanity by clear and convincing evidence. See 18 U.S.C. § 17(b) (burden of proof of insanity defense). The jury rejected the options of not guilty by reason of insanity and not guilty and found Defendant guilty on March 12,1997. Following the conviction, a sentencing hearing occurred in which the jury unanimously found beyond a reasonable doubt all gateway intent factors and the following statutory aggravating factors: (1) that Defendant was previously convicted of another federal or state offense resulting in the death of a person, for which either a sentence of life imprisonment or a sentence of death was authorized; (2) that the offense was committed in an especially heinous, cruel, or depraved manner in that it involved serious physical abuse to the victim; and (3) that Defendant murdered an employee of a United States penal or correctional institution while the employee was engaged in the performance of his duties. [Doc. 258]. The jury further made unanimous findings beyond a reasonable doubt of the existence of the following non-statutory aggravating factors: that Defendant has a low potential for rehabilitation and is a danger to the lives and safety of other persons and that Defendant caused harm to the family of the victim as a result of the killing. The jury determined that based on the preponderance of the evidence four mitigating factors existed. After weighing the aggravating factors against the mitigating factors the jury determined that a death sentence was justified and returned a unanimous verdict of death on March 20, 1997. The sentence was imposed by the Court on that date. The conviction and sentence were affirmed on appeal. United States v. Battle, 173 F.3d 1343 (11th Cir.1999), cert. denied, 529 U.S. 1022, 120 S.Ct. 1428, 146 L.Ed.2d 318 (2000). Thereafter trial/appellate counsel were allowed to withdraw and new counsel were appointed. Defendant conducted an extensive investigation and engaged in discovery through new (habeas corpus) counsel. The instant § 2255 motion was timely filed in October 2001. Evidentiary hearings were held on March 18-19 and April 18, 2002, at which both live and written declaration testimony was proffered by Defendant in support of his motion. Subsequently each side presented proposed findings of fact and conclusions of law. Defendant filed a response to the Government’s proposed findings and conclusions. II. CONSTITUTIONALITY OF THE FEDERAL DEATH PENALTY ACT 18 U.S.C. §§ 3591-97 A. Defendant’s Challenge to His Sentence Defendant challenges his sentence and the constitutionality of the Federal Death Penalty Act (FDPA), 18 U.S.C. §§ 3591-97, on the following grounds: (1) that Defendant’s death sentence must be vacated because the grand jury did not indict him on the gateway intent factors or the statutory and non-statutory aggravating factors necessary to support the death penalty; (2) that the FDPA is unconstitutional in that it does not specify that statutory aggravating factors are elements of the crime charged or require indictment by the grand jury on aggravating factors; and (3) that the FDPA is unconstitutional as it allows for the admission of information at the penalty phase which is not subject to the Federal Rules of Evidence. Defendant’s initial argument is based on the Supreme Court’s holding in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), that under the Sixth Amendment a state’s aggravating factors necessary for imposition of the death penalty must be found by a jury rather than a sentencing judge. Ring, 122 S.Ct. at 2443. In so holding, the Supreme Court noted that the aggravating factors were the “functional equivalent” of elements of the charged offense. Prior to Ring the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that due process under the Fourteenth Amendment and the Sixth Amendment jury trial guarantee requires any fact, other than a prior conviction, that increases a sentence beyond the statutory maximum to be submitted to a jury and proved beyond a reasonable doubt. Id. at 490, 120 S.Ct. 2348. Defendant maintains that after the Supreme Court’s decisions in Apprendi and Ring, any facts which increase a defendant’s maximum penalty are elements of a greater offense which must be charged in the indictment. Defendant alleges that because his indictment did not recite the intent or “gateway” factors (see 18 U.S.C. § 3591(a)) or the statutory and non-statutory aggravating factors (see 18 U.S.C. § 3592(c)) his death sentence must be vacated. The Government disagrees with Defendant’s interpretation of Ring and also submits that Defendant is barred from raising this issue on collateral review based on Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The Government also points out that the Supreme Court has not overruled Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), holding that elements of a crime but not factors which pertain only to sentencing must be charged in the indictment. Id. at 228, 118 S.Ct. 1219. Only one Circuit Court has considered this issue. In United States v. Jackson, for the purposes of plain error review, the United States Court of Appeals for the Fourth Circuit assumed without deciding that Ring required all aggravating factors to be charged in the indictment. U.S. v. Jackson, 327 F.3d 273, 303-06 (4th Cir.2003). The court then held that the omission of some of the aggravating factors from the indictment did not require reversal of the death sentence because the error did not affect the defendant’s substantial rights. Id. This was the ruling of two members of the appellate panel. The third member found that because one aggravating factor was charged in the indictment, the indictment satisfied any requirements under Ring. Id. at 289-91. In United States v. Quinones, 313 F.3d 49 (2nd Cir.2002), a death penalty case, the United States Court of Appeals for the Second Circuit did not have the Ring indictment issue before it (because a superseding indictment had added the aggravating factors prior to defendant’s trial). However, the Court noted in a footnote, in dictum, that under Ring aggravating factors must now be alleged in the indictment. Id. at 53 n. 1. Because Ring did not hold that aggravating factors are elements of the offense conduct, but rather stated that they are the “functional equivalent” of such elements so as to require determination by a jury, Almendarez-Torres has not been overruled, and noting that the United States Court of Appeals, for the Eleventh Circuit has yet to address this issue, this Court interprets Ring to hold only that a defendant in a capital case has a right to jury trial on aggravating factors. Ring does not compel the conclusion that Defendant’s indictment, in addition to the notice of intent to seek the death penalty, should have set forth the aggravating factors. Under this interpretation, Ring provides no basis for attacking Defendant’s sentence. Nonetheless, it is difficult to predict with certainty how the Supreme Court will ultimately clarify the scope and meaning of Ring. If the Court were to specify that statutory aggravating factors must be set forth in the indictment, it would be necessary to determine whether Defendant’s claim is barred under Teague v. Lane. Under Teague, a new constitutional rule of criminal procedure that has not been announced at the time a defendant’s conviction became final cannot be applied retroactively on collateral review unless it falls within one of two narrow exceptions. See Teague, 489 U.S. at 310-11, 109 S.Ct. 1060. Exceptions to Teague’s non-retroac-tivity standards exist if a new rule “places certain kinds of primary private individual conduct beyond the power of the criminal law-making authority to proscribe,” or is a type of “watershed” rule that “alter[s] our understanding of the bedrock procedural elements” essential to the fundamental fairness of a proceeding. Id. at 307, 313, 109 S.Ct. 1060. Defendant first maintains that the rule in Ring is a matter of substantive law rather than a procedural rule. Defendant argues that Ring is a substantive decision because, in effect, it redefines the elements of a capital offense. Defendant cites to Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), for the proposition that facts increasing the maximum sentence become elements of the offense and contends that any resulting procedural benefits come from the initial determination that statutory aggravating factors are elements of the substantive offense, which is a substantive decision. In Bousley, the Supreme Court reviewed whether its decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)(holding that government must show active employment of a firearm for conviction under 18 U.S.C. § 924(c)(1)), was retroactively applicable to cases on collateral review. See Bousley, 523 U.S. at 620-21, 118 S.Ct. 1604. The Supreme Court found Teague inapplicable in this instance as Bailey interpreted the meaning of a statute defining a crime. The Court further distinguished decisions involving procedural rules from decisions that place certain types of conduct beyond the reach of substantive criminal statutes. Id. at 620, 118 S.Ct. 1604. There is no reason for retroactive application of a new criminal procedure rule unless “ ‘without [it] the likelihood of an accurate conviction is seriously diminished.’ ” Id. at 621, 118 S.Ct. 1604 (quoting Teague, 489 U.S. at 313, 109 S.Ct. 1060). Retroactivity is required where there is a substantive construction of a federal statute because of the “significant risk” that a defendant could be convicted for conduct which is not criminal. Id. If the Court’s decision in Ring does require that aggravating factors be set forth in an indictment, this does not result in a change in the elements of any death-eligible offenses in such a way that a defendant’s conduct could no longer be considered criminal. Instead, it merely imposes the additional procedural safeguard of requiring that the aggravating factors be set forth in the indictment. The fact that most circuits have held that Apprendi is a rule of criminal procedure that does not apply on collateral review lends further support to the decision that Ring is a procedural rather than substantive rule. See, e.g., McCoy v. United States, 266 F.3d at 1257; United States v. Moss, 252 F.3d 993 (8th Cir.2001); United States v. Sanders, 247 F.3d 139 (4th Cir.2001); Jones v. Smith, 231 F.3d 1227 (9th Cir.2000). Defendant also contends that Ring is not a “new” rule of criminal procedure. A rule is considered new when “it breaks new ground or imposes a new obligation on the States or the Federal Government.” Teague, 489 U.S. at 301, 109 S.Ct. 1060. In deciding whether a rule is new, a court must review the state of the law at the time the defendant’s conviction became final. See O’Dell v. Netherlands 521 U.S. 151, 156, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). If, at that time, it was reasonable for the trial court to not adopt the rule, then it qualifies as a new rule. Id. at 166, 117 S.Ct. 1969 (noting that Teague requires that judges act “reasonably, not presciently”); see also Cain v. Redman, 947 F.2d 817, 821 (6th Cir.1991)(stating that a rule is “new” as long as the correctness of the rule is “susceptible to debate among reasonable minds”). A rule that aggravating factors must be set forth in the indictment plainly did not exist on March 20, 2000. Therefore, because the rule is both new and a rule of criminal procedure, it must fall within one of Teag-ue’s narrow exceptions in order to apply retroactively. To fall within Teague’s first exception requires that the rule place “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority.” Teague, 489 U.S. at 807, 109 S.Ct. 1060. However, even if Ring requires that aggravating factors be charged in the indictment, this is merely an additional procedural safeguard, not a rule that limits punishment for or decriminalizes certain conduct. Therefore, this exception does not apply. The second Teague exception applies to “watershed rules of criminal procedure.” Id. at 311, 109 S.Ct. 1060. Rules falling within this exception are “those new procedures without which the likelihood of an accurate conviction is seriously diminished” or in which the “procedure at issue [ ] implicate^] the fundamental fairness of the trial.” Id. at 312,109 S.Ct. 1060. This is an extremely narrow exception exemplified by the “sweeping rule” announced in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that counsel shall be provided in all criminal trials for serious offenses. See O’Dell, 521 U.S. at 167, 117 S.Ct. 1969. The Court has noted that “[i]t is ‘unlikely that many such components of basic due process have yet to emerge.’ ” Sawyer v. Smith, 497 U.S. 227, 243, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (quoting Teague, 489 U.S. at 313, 109 S.Ct. 1060). Assuming arguendo that Ring holds that the statutory aggravating factors were required to be in the indictment, it still does not meet the test for a watershed rule of criminal procedure. In Apprendi, the Court decided that any fact, other than a prior conviction, that increases a sentence beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Like other circuit courts, the United States Court of Appeals for the Eleventh Circuit has considered whether Apprendi is Teapite-barred and held that Apprendi is not the type of watershed rule that is applicable on collateral review. McCoy, 266 F.3d at 1257. Under Defendant’s interpretation Ring is basically an extension of Apprendi in the capital sentencing context and therefore, the same logic would apply. It does not “alter our understanding of the bedrock procedural elements” that are essential to a fundamentally fair trial, nor does it affect the likelihood of obtaining an accurate conviction. Even if the Court assumes, ar-guendo that aggravating factors must be alleged in the indictment, Defendant still cannot rely on Ring to collaterally attack his sentence as Ring does not apply retroactively. The concept that failure to include the statutory aggravating factors in the indictment does not implicate whether a defendant receives a fundamentally fair trial rings particularly true in Defendant’s case. He had a jury trial on all claimed intent and aggravating and mitigating factors. He received formal written notice of the Government’s intention to seek the death penalty, and of the intent or gateway factors and the statutory and non-statutory aggravating factors more than six months before the trial. While the indictment did not duplicate the statutory wording of 18 U.S.C. § 3591(a)(2) regarding the intent factor, it charged that Defendant committed the murder “with malice aforethought” which substantially duplicates “intentionally killed the victim” as set forth in § 3591(a)(2)(A). Although the indictment did not recite all statutory aggravating factors, it did substantially charge one of the statutory aggravating factors, namely, the murder occurred while Defendant was already serving a term of life imprisonment. See 18 U.S.C. § 3592(b)(3). Finally, it is reasonable to assume that if the members of the petit jury found the existence of aggravating factors beyond a reasonable doubt, the grand jury would also have found probable cause of their existence. See United States v. Patterson, 241 F.3d 912, 914 (7th Cir.2001) (noting that if the evidence is strong enough that a petit jury makes a certain finding then a grand jury (which acts under a lower burden of persuasion) would have likely drawn the same conclusion). B. Constitutionality Of the Federal Death Penalty Act Under the Fifth Amendment Indictment Clause Defendant argues that, based on the holdings announced in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (holding that the federal carjacking statute defined three separate offenses, differentiated by certain factual predicates which must be charged by indictment, submitted to the jury, and proven beyond a reasonable doubt), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt), and Ring (holding that a defendant cannot be sentenced to death on the basis of an aggravating circumstance found by a sentencing judge sitting without a jury) the Federal Death Penalty Act is facially unconstitutional as it violates the Fifth Amendment’s Indictment Clause. Defendant maintains that the statute fails to comply with Indictment Clause requirements because it does not specify that aggravating factors become elements of a capital offense and fails to require grand jury consideration of the aggravating factors and inclusion of such factors in the indictment. Because a statute is presumed to be constitutional, Defendant bears the burden of proving that the FDPA is unconstitutional. See INS v. Chadha, 462 U.S. 919, 951-52, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Defendant’s argument is based on the premise that every fact that increases the maximum punishment for an offense automatically becomes an “element” of the offense and therefore, the facts must be defined as elements in the statute and alleged in the indictment. Insofar as the constitutionality of the Federal Death Penalty Act is concerned, there are three flaws in this argument. First, Ring did not characterize aggravating factors as elements of the charged offense but rather as the “functional equivalent” thereof. Second, the context for the “functional equivalent” characterization was the question whether the right of jury trial attached to the fact-finding process for aggravating factors. Third, Ring specifically noted that there was no claim that the aggravating factors should have been placed in the charging instrument. Therefore, it is simply incorrect to assert that Ring held that aggravating factors must be charged in the indictment. While the Supreme Court may in the future clarify that that was its intent, it has not done so yet. While it would not be particularly burdensome for the Government to present evidence of aggravating factors to a grand jury, and a prosecutor might in fact be pleased to do so, there are some good reasons not to require this procedure. First, standard practice is to provide the indictment to the trial jury. Allowing the jury to view the claimed aggravating factors prior to determining whether the defendant is guilty of any crime could be unfairly prejudicial to the defendant. While redactions arguably could be made for this purpose, why require adding something to the indictment which will often have to be redacted? The use of the notice of intention to seek the death penalty, which must state the aggravating factors, fulfills the function of formal notice just as well as an indictment but without this shortcoming. Another concern raised by requiring the grand jury to determine aggravating factors in death penalty cases is whether the judge empaneling the grand jury would be required to conduct a voir dire so as to exclude any potential grand jurors who would be unable to fairly determine aggravating factors on account of conscientious objection to the death penalty. If so, there would be no counsel present to assist the empaneling judge as by definition there would as yet be no case. The chance that this voir dire could be conducted to the satisfaction of counsel named after the indictment is returned would, at best, be nil. The Court finds that the Federal Death Penalty Act is not rendered facially unconstitutional under the Fifth Amendment Indictment Clause merely because the aggravating factors are not defined as elements of a capital offense. Cf. United States v. Sprofera, 299 F.3d 725 (8th Cir.2002) (upholding constitutionality of 21 U.S.C. § 841 after Apprendi and citing other circuits in agreement); United States v. Brough, 243 F.3d 1078, 1079 (7th Cir.) cert. denied, 534 U.S. 889, 122 S.Ct. 203, 151 L.Ed.2d 144 (2001) (upholding § 841 and stating that “the statute does not say who makes the findings or which party bears what burden of persuasion. Instead the law attaches effects to facts, leaving it to the judiciary to sort out who determines the facts, under what burden. It makes no constitutional difference whether a single subsection covers both elements and penalties, whether these are divided across multiple subsections (as § 841 does), or even whether they are scattered across multiple statutes (see 18 U.S.C. §§ 924(a), 1963).”). The Federal Death Penalty Act requires that a jury, rather than a judge, must make a unanimous finding that the intent requirement and any statutory aggravating factors exist beyond a reasonable doubt and that the jury must return special findings to this effect. See 18 U.S.C. § 3593(c),(d). In this respect, the statute complies with the constitutional procedures set forth in Apprendi and Ring. Defendant also argues that the statute is facially unconstitutional because it does not require that the prosecution present the statutory aggravating factors to the grand jury for charging purposes and thereby leaves the decision to seek the death penalty to the prosecutor rather than the grand jury. Under the FDPA, a prosecutor is required to file a notice of intent to seek the death penalty which states the statutory and non-statutory aggravating factors that the Government intends to prove beyond a reasonable doubt. See 18 U.S.C. § 3593(a).. The Act does not contain any requirement that the statutory aggravating factors be presented to the grand jury and treated as “the functional equivalents of elements” of the offense. This silence, however, is not enough to render the statute facially unconstitutional, even if Ring requires that such factors be set forth in the indictment. A statute, whether it defines substantive crimes or sets forth sentencing factors, does not provide specifics indicating what must be presented to a grand jury. The requirements for what must be contained in the indictment are governed by Federal Rule of Criminal Procedure 7(c) and court decisions. Although the FDPA provides for a formal notice of intent it does not preclude the Government from alleging the intent factor and any statutory aggravating factors in the indictment. As noted by other courts, the fact that the statute does not expressly provide for a role for the grand jury does not render it unconstitutional. See United States v. Sampson, 245 F.Supp.2d 327, 336 (D.Mass.2003)(“[t]he Federal Death Penalty Act does not conflict with or contradict the grand jury process that is now prescribed by [Jones, Apprendi, and Ring ].”); United States v. Johnson, 239 F.Supp.2d 924, 935-46 (N.D.Iowa 2003) (upholding constitutionality of death penalty provisions of 21 U.S.C. § 848); United States v. Regan, 221 F.Supp.2d 672 (E.D.Va.2002) (upholding constitutionality of death penalty provisions of FDPA). C. Challenge to the FDPA’s Evidentia-ry Standard Defendant’s final challenge to the constitutionality of the FDPA is based on the evidentiary standard used in the sentencing phase of a capital trial. The Act provides that: At the sentencing hearing, information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be considered under section 3592.... Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. 18 U.S.C. § 3593(c). Defendant argues that this relaxed standard of evidence violates his Fifth Amendment due process rights and Sixth Amendment guarantees of confrontation and cross-examination. Defendant contends that based on the Supreme Court’s concern for heightened reliability in capital cases and Ring’s statement that aggravating circumstances operate as the “functional equivalent of elements of a greater offense” the evidence proffered in support of these factors must be subject to the same constitutional protections as the evidence proffered in support of the guilt determination. Defendant relies primarily on the district court decision in United States v. Fell, 217 F.Supp.2d 469, 489 (D.Vt.2002), which held that the FDPA was unconstitutional as its relaxed eviden-tiary standard requirement did not provide the adequate constitutional protection required in a death-eligibility determination. According to Fell, this level of protection requires that the evidence be subject to the constraints of the Federal Rules of Evidence. See Fell, 217 F.Supp.2d at 488-89. As in Defendant’s challenge based on the Indictment Clause, the specific holding in Ring does not compel this result. Even if the aggravating factors are to be treated as the functional equivalent of elements for the purposes of the Sixth Amendment right to a jury trial, the Federal Rules of Evidence are not constitutionally mandated. Congress has the authority to set forth rules of evidence in federal trials subject to the requirement that the rules comport with due process. See Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943); see also United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (“[Rjulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.”). Therefore, as long as the Act’s requirements provide a level of protection that ensures that defendants receive the right to a fundamentally fair trial, it satisfies constitutional requirements. Evidentiary standards in the FDPA are in line with the Court’s previous rulings on the admissibility of evidence at capital sentencing proceedings. See Gregg v. Georgia, 428 U.S. 153, 204, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (“[I]t [is] desirable for the jury to have as much information before it as possible when it makes the sentencing decision.”); see also Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (“[I]n capital cases ... the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.”). Under the FDPA standards, judges continue their role as evidentiary gatekeepers and retain the discretion to exclude any type of unreliable or prejudicial evidence that might render a trial fundamentally unfair. See 18 U.S.C. § 3593(c) (“[Unfor-mation may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.”) Therefore, a defendant’s constitutional rights are protected even if the Federal Rules of Evidence do not govern the admissibility of evidence at capital sentencing hearings. This also applies with respect to any concerns raised under the Sixth Amendment Confrontation Clause. The Confrontation Clause promotes the “integrity of the factfinding process.” White v. Illinois, 502 U.S. 346, 357, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). The United States Court of Appeals for the Fifth Circuit has stated that “the relaxed evidentiary standard does not impair the reliability or relevance of information at capital sentencing hearings, but helps to accomplish the individualized sentencing required by the constitution.” United States v. Jones, 132 F.3d 232, 242 (5th Cir.1998). With respect to the admission of evidence, “where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.” See White, 502 U.S. at 356, 112 S.Ct. 736. Therefore, the trial judge has the authority under the act to ensure that reliability requirements under the Confrontation Clause are met and that any information too prejudicial to the defendant is excluded from the proceedings. Under the same reasoning, other federal courts have issued decisions upholding the evidentiary standards set forth in § 3593(c). See United States v. Davis, No. CR.A.01-282, 2003 WL 1837701 at *11 (E.D.La. April 9, 2003); United States v. Regan, 221 F.Supp.2d 672, 681-83 (E.D.Va.2002). Therefore, the undersigned finds that the evidentiary standards set forth in the FDPA do not render the act unconstitutional. Defendant contends that his penalty phase hearing was “fraught with hearsay evidence that ... could not be challenged” and that the hearsay evidence was “inflammatory.” Supplement filed Nov. 26, 2002 at 6. The Court disagrees. First, the testimony referenced by Defendant (without any citations to the record) is not properly characterized as inflammatory. Neither did defense counsel object to this testimony. The testimony about Defendant’s threats and assaults on his wife’s family and friends was direct, eyewitness testimony, not hearsay testimony. Defendant himself testified to his unhappy relationship with his wife and noted that he “smacked her”, Tr. 1380; suggested to her that they get a divorce, Tr. 1383; fought with his wife’s relatives, Tr. 1384; and that he fired a weapon in the air, Tr. 1385. Second, the Court sustained objections made by the defense to testimony which was not deemed to meet a proper reliability threshold, given the potential for undue prejudice. See, e.g., Tr. 3551 (allegations too old and vague to permit response); Tr. 3666 (disallowing testimony of witness not personally present when Defendant broke out of jail cell); Tr. 4059 (inflammatory question to defense witness disallowed); Tr. 4248 (disallowing Government’s cross-examination where timing of question unfair to Defendant). Therefore, Defendant not only could, but actually did object to penalty phase testimony which he believed was unfair. III. COMPETENCY RELATED CLAIMS Defendant makes a number of claims related to the issue of his competency to stand trial. A. Authority of Magistrate Judge to Preside at Competency Hearing First, Defendant argues that the magistrate judge lacked the authority to preside at the competency hearing. He argues that competency proceedings may not be referred to magistrate judges under 28 U.S.C. § 636(b). 28 U.S.C. § 636(b)(1)(A) authorizes the designation of a magistrate judge to determine “any pretrial matter pending before the court” with certain exceptions not applicable here. The same subsection states that the judge, that is the Article III judge, may reconsider any pretrial matter where it appears that the magistrate’s order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(B) allows the designation of a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to the district judge proposed findings of fact and recommendations for disposition of any of , the types of hearings excepted by section (b)(1)(A). Proposed findings and recommendations made under subparagraph (B) must be submitted to the district court judge, along with any objections filed by the parties. Where objections are filed, the district court judge is required to make a de novo determination of those portions of the report or specified proposed findings or recommendations to which any objection has been made. At that point the district judge may accept, reject, or modify the findings or recommendations made by the magistrate judge. Under Rule 58.1, Local Criminal Rules of the Northern District of Georgia, magistrate judges are authorized to hear both dispositive and non-dispositive pretrial motions in criminal cases, under the review procedures required by 28 U.S.C. § 636(b). The magistrate judge’s order finding Defendant competent to stand trial directed that any objections thereto be filed within ten days. Defendant Battle timely filed his objections. The objections did not contest the primary facts relied upon by the magistrate judge, but rather argued that the magistrate judge had incorrectly determined that the reasoning of Dr. Johnson and Dr. Hazelrigg (the court-appointed experts and witnesses for the Government) on the issue of competency was more persuasive than that of Dr. Woods, Dr. O’Ha-gan, and Dr. Davis (the defense’s experts). After reviewing the transcripts of the hearing before the magistrate judge and the exhibits admitted, the undersigned entered an order on February 5, 1997, that Defendant was competent to stand trial. The order specified that Defendant was able to assist his trial counsel. Thus, the objections to the magistrate judge’s recommendation were overruled. While the undersigned did not hear the live testimony of the witnesses at the competency hearing, she was able to hear the testimony of the same witnesses during the course of the trial. Having done so, the Court remains of the opinion that the reasoning presented by Drs. Johnson and Hazelrigg is more persuasive than that of Dr. Woods, Dr. Davis, and Dr. O’Hagan on the issue of Defendant’s competency to stand trial. The record makes it clear that Defendant had a good understanding of the criminal trial proceedings, that he not only could but did talk to his lawyers about his various options, that he considered these options and that he had a good recollection of the events of December 21, 1994 which brought about the instant indictment. Defendant does not cite relevant authority for his bare assertion that competency proceedings are not pretrial proceedings. United States v. Johnston, 258 F.3d 361 (5th Cir.2001), cited by Defendant, involved a situation where a magistrate judge had entered a final order dismissing a § 2255 motion. There was no review by the district judge. The Court of Appeals pointed out that it is inappropriate for a magistrate judge to adjudicate the propriety of previous actions by an Article III judge. Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537, 544 (9th Cir.1984)(en banc), which Defendant also cites, presented the issue whether the parties in a patent case could validly consent to the trial of a patent case before a magistrate judge. In finding that they could, the Court of Appeals noted that the procedure still left open appellate review by Article III judges. Therefore, there was no constitutional bar to this procedure. Thus, neither of these cases is helpful to Defendant. In summary, the Court finds that the magistrate judge did have the authority to conduct the competency hearing; further, an intensive review of the magistrate judge’s determination was undertaken by the undersigned. After conducting that review, the Court agreed with the magistrate judge’s conclusion. B. Substantive Competency Claim Defendant claims that the record of the competency and trial proceedings, plus certain new evidence introduced in the habeas proceedings, shows that he actually was incompetent during the trial which began February 18, 1997 and ended on March 20, 1997. This is a substantive due process claim which is not barred despite the fact that Defendant did not raise this claim on direct appeal. See Johnston v. Singletary, 162 F.3d 630, 637 (11th Cir.1998). The trial of an incompetent defendant violates due process. Medina v. Singletary, 59 F.3d 1095 (11th Cir.1995). Incompetency to stand trial is defined as “suffering from a mental disease or defect rendering [defendant] mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a). To obtain a post-conviction evidentiary hearing on a substantive due process claim, a defendant must show “clear and convincing evidence” that creates a “real, substantial and legitimate doubt” as to whether he was competent to stand trial. Johnston, 162 F.3d at 637 (quoting Medina, 59 F.3d at 1106). Here the only relevant new evidence proffered by Defendant — the declaration of one of Defendant’s trial counsel, Stephanie Kearns, and the 2002 Psychiatric Report — was admitted into evidence at the March 18, 2002 habeas hearing without objection. The standard to be applied in resolving the substantive competency claim is set forth in Johnston. Id. at 637. Defendant must show by a preponderance of the evidence that he was not competent during the trial. The burden of persuasion is on Defendant. In evaluating Defendant’s substantive competency claim, the Court will consider the facts developed in the competency proceedings which are summarized and evaluated in the order of February 5, 1997, finding Defendant competent; the record of the trial proceedings; the Court’s observations of Defendant during the trial; and the new evidence admitted at the habeas hearing which bears on the issue of competency at trial. 1. Competency Proceedings On February 14, 1995, John R. Martin, an attorney in private practice with significant death penalty trial experience, and Stephanie A. Kearns, Director of the Federal Defender Program, Inc., for the Northern District of Georgia (“Federal Defender Program”), were appointed to represent Defendant. Russell Gabriel, an attorney then employed by the Federal Defender Program, also was assigned to work on the case and did so until the conclusion of the competency proceedings in November 1996. Defense counsel met with Defendant. At some point in the spring of 1995, they arranged for a psychologist from Vanderbilt University to meet with counsel for Defendant. According to Defendant, see 1996 Psychiatric Report ¶ 6, they discussed an insanity defense. No written report of the meeting is in the record. Counsel then arranged for Dr. Dave Davis, a forensic psychiatrist, to interview Defendant. Dr. Davis first saw Defendant in mid-August 1995. Davis spoke to Defendant through a food slot at FCI-Tal-ladega. Based on the interview which lasted several hours and Dr. Davis’ review of the report prepared by BOP psychiatrist Dr. Sally Johnson in 1987 (“1987 Psychiatric Report”), Dr. Davis concluded that Defendant was suffering from paranoid schizophrenia. Dr. Davis prepared a written report of his findings dated August 15, 1995, and submitted it to trial counsel. The report discussed Defendant’s claim that his thoughts were being monitored by microchips and that the monitoring had begun while he was at USP-Leavenworth in 1992 or 1993. Defendant said that at that time he was monitored by a guard who sat in a control booth and wore headphones. Defendant claimed he was having hallucinations. Davis also noted that during the interview Defendant was “cooperative, friendly, alert and fully oriented”; that “his thought processes were cogent and his associations were intact. There was no looseness. His speech was unremarkable, except for occasional stuttering”; “his judgment ... and his reality testing seemed impaired.” [Sealed Doc. 363], Defendant was indicted on November 21, 1995 and he was arraigned on December 4, 1995. [Docs. 1, 2]. Defense counsel filed a notice of intent to rely upon the defense of insanity. [Doc. 6]. The Government’s motion to have Defendant evaluated for competency and sanity at the time of the offense was granted. [Doc. 12]. Pursuant to a court order, Defendant was then evaluated at FCI-Butner by Dr. Sally Johnson, a BOP forensic psychiatrist, and Dr. Mark Hazelrigg, a BOP psychologist. The evaluation lasted about 75 days. Drs. Johnson and Hazelrigg submitted a report to the Court dated March 21, 1996 (“1996 Psychiatric Report”) which concluded that Defendant has a mixed personality disorder with schizotypal, paranoid, and antisocial features and that he is malingering or faking his belief in the delusional system (the implants) and the hallucinations that he reported to them and to Dr. Davis. They concluded that Defendant was competent to proceed to trial. After defense counsel received Drs. Johnson and Hazelrigg’s report, they asked Dr. Davis to evaluate Defendant again. Dr. Davis did so in May 1996, and reaffirmed his diagnosis that Defendant was suffering from paranoid schizophrenia in a May 23, 1996 report. He found Defendant to be alert, talkative, and fully oriented. He found that Defendant was not faking his delusion. [Sealed Doc. 363]. Defense counsel also retained Dr. George Woods, a forensic psychiatrist with a specialty in neuropsychiatry, to examine Defendant. Dr. Woods interviewed Defendant in May, July, and September 1996. One of the interviews was a “structured competency interview” held on September 18 with Defendant and defense counsel Kearns. Apparently no recording was made of this interview. In any event it is not in the record. Dr. Woods concluded in a letter report to counsel dated September 26, 1996, that Defendant was suffering from schizophrenia, paranoid type, acute, and that he was not competent to stand trial. [Sealed Doc. 363]. Woods noted: Mr. Battle also fits neatly into the paranoid subtype for schizophrenia. He does have a preoccupation with one or more delusions or frequent auditory hallucinations. His delusion is very specific and did not generalize to other topics. We rarely find disorganized speech, disorganized or catatonic behavior, or flat/inappropriate speech. Id. at 2. Mr. Battle is not capable of rationally assisting his attorneys in the preparation of his defense. Due to the nature of his mental illness, his delusions preclude him from being able to rationally provide his attorneys with an array of options in developing his defense theory. Id. at 8. Dr. Woods mentioned that in the structured competency interview, “Ms. Kearns was unable to have Mr. Battle agree that an insanity defense be included in the possible options for a defense.” Woods rejected the idea that Defendant was faking his delusion regarding the implants noting that Defendant actually denied being mentally ill. Trial counsel also employed Dr. Stephen O’Hagan, a forensic psychologist, to test and evaluate Defendant. In August and September 1996, Dr. O’Hagan interviewed Defendant six times and administered a battery of cognitive and neuropsychological tests. Based upon his interviews and tests, Dr. O’Hagan concluded in a September 22, 1996 letter to defense counsel that Defendant was paranoid schizophrenic and incompetent to stand trial. Regarding competency, he said: I do not believe that he has the capacity to work with his attorney in a meaningful and rationale [sic] manner at this time. [Sealed Doc. 363]. Dr. Davis visited Defendant on November 26, 1996. He sent counsel a written report which stated in part “Mr. Battle was much more psychotic than I have seen him on previous occasions.” [Sealed Doc. 261 at 2]. In October 1996 a lengthy competency hearing was held before United States Magistrate Judge Richard H. Deane, Jr. At the competency hearing the Government called Drs. Johnson and Hazelrigg and Defendant called Drs. Davis, Woods, and O’Hagan and lay witnesses. Defendant did not testify at the competency hearing. Dr. Sally Johnson testified that she saw Defendant about forty times in January— March 1996. Competency (“Comp.”) Hrg. Tr. 46. She also spent numerous hours reading the collateral information and records on Defendant. Comp. Hrg. Tr. 218. Dr. Johnson had a great deal of historical information about Defendant for her use during the evaluation, including his entire inmate file, his medical and psychological history beginning in 1987 within the prison system, a social history presented by the defense, and Defendant’s two confessions to the murder of Officer Washington, among other items of written information. Dr. Hazelrigg did not review all of the written material on Defendant, but rather consulted with Dr. Johnson on her review of the file. Comp. Hrg. Tr. 793. Dr. Hazelrigg also participated in interviews with Defendant, saw him about fifty times, and conducted all of the psychological testing. Comp. Hrg. Tr. 819. Further, Dr. Johnson herself had evaluated Defendant for competency in 1987 when he was accused of murdering his wife. She found him competent in 1987, diagnosed him as suffering from a personality disorder with paranoid and schizotypal features, and noted his history of substance abuse. Comp. Hrg. Tr. 34; see also 1987 Psychiatric Report. She found no evidence of psychosis. Defendant did not exhibit signs of psychosis during his stay at Butner during 1987-88. Comp. Hrg. Tr. 38, 41. She testified that nursing notes from Defendant’s stay at Butner during 1996 “provide documentation of his good and relatively nonpathological functioning,” and that overall he did not evidence delusional ideas or hallucinations. Comp. Hrg. Tr. 756; Gov. Ex. 1, Comp. Hrg. Dr. Johnson testified that even after Washington’s murder, a review of the record showed that Defendant did not show signs of psychosis or severe symptoms of mental illness at FCI-Talladega. Comp. Hrg. Tr. 44. During Dr. Johnson and Dr. Hazelrigg’s interviews with Defendant in 1996, Defendant was fairly consistent in his affect and mood presentation. Comp. Hrg. Tr. 49. He was cooperative, alert, willing to talk and seemed to enjoy their interactions; he answered questions and provided information, and was always oriented as to time, place, and situation. Comp. Hrg. Tr. 50, 821. Defendant had a very detailed understanding of the purpose of the evaluation and was able to maintain that understanding throughout the evaluation period. Comp. Hrg. Tr. 50-51, 821. Defendant reported some delusional ideas and hallucinations to Dr. Johnson and to Dr. Hazelrigg. Comp. Hrg. Tr. 822. He claimed that the correctional officers were controlling him, causing physical pains and sensations. Comp. Hrg. Tr. 53. Defendant claimed that somehow he had been implanted with something which allowed this type of control and harassment. Id. He also claimed to be hearing voices. In regard to Defendant’s understanding of his current legal situation and legal procedure, Dr. Johnson reviewed this topic with him on a number of occasions, at least six, and from their first discussion he demonstrated his awareness of the seriousness of his legal situation. Comp. Hrg. Tr. 67. Defendant was able to describe in great detail how he murdered Officer Washington, demonstrating total recall of the incident. Comp. Hrg. Tr. 68. Defendant’s report of the murder comported with other reports Dr. Johnson reviewed. Id. Dr. Hazelrigg testified about Defendant’s recollection of the murder of Officer Washington as well; he testified that it was remarkable that in discussing the murder, Defendant was not distressed, was not shy in talking about it, and seemed to enjoy it. Comp. Hrg. Tr. 831. Dr. Hazelrigg believed Defendant viewed his murder of the officer as an accomplishment and with a sense of pride. Id. Dr. Hazelrigg opined that part of an antisocial personality is showing no remorse, having a lack of empathy for other people and their problems; he felt that Defendant certainly fit into this profile, as he had virtually no remorse for his actions in this case and in other incidents in which he violated other people’s rights. Comp. Hrg. Tr. 831-32. Defendant was able to discuss with Dr. Johnson a plea of not guilty by reason of insanity, and recalled it as having been an option presented to him in his first murder trial in 1987. Comp. Hrg. Tr. 69. Defendant was able to carry on “an intelligent, detailed conversation about the defense with me, with Dr. Hazelrigg.” Comp. Hrg. Tr. 70. It was also evident to Dr. Johnson that Defendant was considering that plea as an option. Comp. Hrg. Tr. 70. Dr. Johnson further discussed with Defendant a jury trial, a bench trial, a guilty plea, and plea bargaining; in her opinion Defendant demonstrated a good understanding of the various plea options available to him. Comp. Hrg. Tr. 70. They discussed the appellate process, both from the standpoint of his previous experience and potential future experience. Comp. Hrg. Tr. 71. Defendant was aware of the fact that he could face the death penalty. Id. They spoke at length about Defendant’s ability to make legal decisions, such as whether or not to testify or whether or not to enter a plea of insanity. Id. Defendant was able to consider these options, and to weigh his attorneys’ advice on that issue. He had a good grasp of the issue of testifying. Id. Dr. Hazelrigg also testified that Defendant had a very clear understanding of various plea options, including that of not guilty by reason of insanity; he also clearly understood the concept of jury trial and the appellate process. Comp. Hrg. Tr. 832. They also discussed the fact that he could face the death penalty; in these discussions, Defendant would demonstrate his ambivalence by saying he would rather be put to death than spend the rest of his life in prison, while other times Defendant would speak of his desire of wanting to live out his life. Comp. Hrg. Tr. 833-34. Dr. Hazelrigg felt Defendant could rationally discuss all of these different possibilities and the implications for his life. Defendant was faced with bad choices, none of which he wanted to make. Comp. Hrg. Tr. 833. The fact that he cannot make up his mind is different from his ability to reason through the options and understand what the outcomes would be. Comp. Hrg. Tr. 834. Dr. Johnson and Defendant spoke of his ability to assist his attorneys. Dr. Johnson testified that he has a very good ability to interact with his attorneys, trusts their judgment, yet maintains a healthy interest in being the one to ultimately make decisions. He can clearly consider his attorneys’ advice, and is demonstrating that he is thinking about the choices he has to make. Comp. Hrg. Tr. 72-73. Dr. Johnson further testified in this regard that Defendant has been able to maintain contact with his attorneys, that he talks intelligently, is not disruptive in the interactions and that he tracks information. He demonstrated to Dr. Johnson that he was consulting with his attorneys and processing information received from them by comments he made such as “This is something I should talk to my attorney about,” or “My attorney has advised me' this way or that.” Dr. Johnson concluded that he clearly has the capacity to discuss all of the potential decisions with his legal counsel. Comp. Hrg. Tr. 73. Dr. Hazelrigg also discussed Defendant’s ability to assist his attorneys with him; it was his opinion that Defendant has had experience with the legal system and could explain the roles of the various parties accurately and in a fair amount of detail. Comp. Hrg. Tr. 830. Dr. Hazel-rigg testified that Defendant is absolutely capable of assisting his attorneys, in that he understands and has a detailed memory of the offense, and could easily help with confronting witnesses, analyzing whether witnesses were being truthful or not, or providing details about the situation that could help uncover evidence. Comp. Hrg. Tr. 835. Dr. Johnson also opined that Defendant had some ambivalence about what he wanted to do, but that his understanding of his legal situation is not impaired in any way by mental illness. Comp. Hrg. Tr. 208. Dr. Johnson testified that Defendant has “significant insight into his current situation, is able to consider the issue abstractly and on a very personal level.” Comp. Hrg. Tr. 74. Dr. Johnson testified that Defendant did not meet the DSM IV criteria for schizophrenia. Comp. Hrg. Tr. 78. She testified that he actually isn’t hallucinating and isn’t delusional. He did not have any disorganized speech or behavior and he doesn’t have a flat affect, but rather has a full range of affect. Moreover, she testified that the symptoms he reported did not seem to have any effect on his daily functioning, and that he has not shown any deterioration in his functioning over the last nine years. Comp. Hrg. Tr. 79. She testified that schizophrenia is typically an incapacitating mental illness, though not necessarily equally incapacitating every day; the symptom pictures do wax and wane. However, the general course is one of deterioration, especially without treatment, and Defendant has not had any treatment for a psychotic disorder over the last nine years. She would have expected deterioration if he was truly suffering from schizophrenia. Comp. Hrg. Tr. 79. During Defendant’s stay at Butner in 1996, his behavior was consistent in that he ate well, slept well, exercised, cooperated with personal hygiene issues, and was always clean. Comp. Hrg. Tr. 81, 734. Further, Dr. Johnson and the other staff observed that he was appropriate in 'his interactions, demonstrated by the fact that he would strike up conversations, talk about current events and sports, read the paper, listened to the news on the radio, and was able to compare his own case to other cases that were public during the year. Comp. Hrg. Tr. 81-82. Defendant compared his situation to the Oklahoma bombing case defendants, and talked about the O.J. Simpson trial. Id. Dr. Johnson testifie