Full opinion text
MEMORANDUM AND ORDER BELOT, District Judge. This case comes before the court on two motions filed by defendant that attack the constitutionality of the Federal Death Penalty Act, 18 U.S.C. §§ 3591 to 3598, and the constitutionality of these proceedings as they relate to the government’s efforts to seek the death penalty against him. (Docs. 145, 146.) The government has filed a consolidated response to both motions. (Doc. 191.) No reply has been filed. I. INTRODUCTION Defendant is charged in a thirteen-count third superseding indictment with crimes arising out of an altercation with law enforcement on or about January 19, 2005. (Doc. 200.) The government claims that defendant and a number of former co-defendants were manufacturing methamphetamine at a rural home in Greenwood County, Kansas. Responding to a tip that defendant was at this residence, Greenwood County Sheriff Matthew Samuels and two deputies went to the house to investigate. Sheriff Samuels entered the house. Shortly thereafter, the government alleges that defendant shot the sheriff twice with a .44 magnum revolver at close range. Sheriff Samuels died as a result of those wounds. (Doc. 200.) Among other offenses, Count Five of the indictment charges defendant with murder through the use of a firearm during the commission of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1), (j)(l). Count Six charges defendant with murder to prevent a witness from communicating to federal officials information relating to the commission of federal crimes, in violation of 18 U.S.C. § 1512(a)(1)(C). The government’s theory on Count Six is that defendant killed Sheriff Samuels to prevent him from informing federal officials that defendant was a felon in possession of firearms, that he knowingly possessed stolen firearms, and that defendant may have been involved in a bank robbery. (Doc. 200 at 6.) The crimes charged in Counts Five and Six each carry a maximum sentence of death. The government also included in the indictment a section labeled “Notice of Special Findings.” (Doc. 200 at 10.) In this portion of the indictment, the grand jury returned findings related to the factors set forth in 18 U.S.C. §§ 3591(a) and 3592(c). These sections are contained in Chapter 228 of Title 18, which prescribes procedures for determining whether a defendant should be sentenced to death. The indictment states that defendant was over 18 years of age at the time of the charged offenses. This fact is an absolute prerequisite to imposing a death sentence under section 3591(a). The indictment also charges that defendant had all four of the requisite mental states specified under section 3591(a)(2). These mental states are often referred to as “gateway intent factors” because a petit jury must find that a defendant had at least one of these four mental states before it may consider whether to recommend a death sentence. Finally, the Notice of Special Findings charges three of the statutory aggravating factors listed in section 3592(c): 1) Grave risk of death to additional persons; 2) substantial planning and premeditation; and 3) multiple killings or attempted killings. Defendant filed a number of motions attacking the procedure followed by the government. (Docs. 140 through 146.) This memorandum and order addresses two of those motions, (Docs. 145, 146), which focus sharply on the constitutionality of the Federal Death Penalty Act and on the government’s procedure in this case. II. THE FEDERAL DEATH PENALTY ACT Capital punishment has been an accepted penalty for the most severe crimes since the founding of the Republic. See generally McGautha v. California, 402 U.S. 183, 197-203, 91 S.Ct. 1454, 1462-65, 28 L.Ed.2d 711 (1971) (reviewing history of capital punishment from 13th century England through modern era in America); see also Trap v. Dulles, 356 U.S. 86, 99, 78 S.Ct. 590, 597 2 L.Ed.2d 630 (1958) (“[T]he death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.”). Nevertheless, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Supreme Court upended almost two centuries of death penalty jurisprudence by effectively putting a halt to capital punishment in America. The Court did not find the death penalty categorically unconstitutional; rather, in a series of concurring opinions in which no two justices joined together, the Court found that the procedures employed to impose the death penalty lacked the standards necessary to guide the sentencing body (whether judge or jury) toward a principled judgment regarding who should be put to death and who should be spared. See id. at 240 (Douglas, J., concurring); id. at 295, 92 S.Ct. 2726 (Brennan, J., concurring); id. at 309-10, 92 S.Ct. 2726 (Stewart, J., concurring); id. at 314, 92 S.Ct. 2726 (White, J., concurring); id. at 37, 92 S.Ct. 27261 (Marshall, J., concurring). This unbridled discretion allowed capital juries to set their own standards for making this solemn decision, thus rendering the entire process so arbitrary and capricious as to violate the Eighth Amendment. See Gregg v. Georgia, 428 U.S. 153, 188-89, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (plurality opinion) (describing the basis for the decision in Furman). In response to Furman, many states modified their procedures for administering the death penalty. In 1976, the Supreme Court reviewed the responses from the states of Georgia, Florida, and Texas. See id.; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Ju-rek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). These eases reaffirmed the Court’s abhorrence of capital punishment schemes that permit a death sentence to be imposed in an arbitrary, standardless fashion. See Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980) (plurality opinion). Accordingly, even sentencing procedures purporting to have standards that were responsive to Furman could be unconstitutional if they failed to channel the sentencer’s discretion by “clear and objective standards” that provide “specific and detailed guidance,” and that “make rationally reviewable the process for imposing a sentence of death.” As was made clear in Gregg, a death penalty “system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” 428 U.S. at 195, n. 46, 96 S.Ct. at 2935, n. 46. Id. (quoting Gregg, 428 U.S. at 198, 96 S.Ct. at 2936; Proffitt, 428 U.S. at 253, 96 S.Ct. at 2967; Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)) (footnotes omitted). Although the Supreme Court concluded that the sentencing procedures employed by Texas, Florida, and Georgia were constitutional, during that same term, the Court also found that mandatory death sentences for certain crimes were unconstitutional, and that the Eighth Amendment required individualized sentencing that considers facts peculiar to the specific defendant and the specific crime under consideration. See Woodson, 428 U.S. at 303-04, 96 S.Ct. at 2991 (plurality opinion); Roberts v. Louisiana, 428 U.S. 325, 333, 96 S.Ct. 3001, 3006, 49 L.Ed.2d 974 (1976) (plurality opinion). In the years since Furman and the five capital cases from the 1976 term, the Supreme Court has revisited its death penalty jurisprudence numerous times. Although its purpose was undoubtedly to refine and clarify the law in this area, the Supreme Court’s perpetual tinkering and splintered decisions regarding death penalty law has created a moving target that often changes term-by-term. Sometimes the decisions flow from one another; but on other occasions, what was a well settled rule of law in one decade is found repugnant to the Constitution in the next. Compare Walton v. Arizona, 497 U.S. 639, 647-49, 110 S.Ct. 3047, 3054-55, 111 L.Ed.2d 511 (1990) (permitting a judge to decide facts that make a defendant eligible for the death penalty), with Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 2443, 153 L.Ed.2d 556 (2002) (overruling Walton on this same point); compare South Carolina v. Gathers, 490 U.S. 805, 810-11, 109 S.Ct. 2207, 2210-11, 104 L.Ed.2d 876 (1989) (holding it unconstitutional to admit evidence of a victim’s personal characteristics at the penalty phase of a capital trial), and Booth v. Maryland, 482 U.S. 496, 509, 107 S.Ct. 2529, 2536, 96 L.Ed.2d 440 (1987) (same), with Payne v. Tennessee, 501 U.S. 808, 828-30, 111 S.Ct. 2597, 2610-11, 115 L.Ed.2d 720 (1991) (expressly overruling Booth and Gathers on this point). Lower courts administering capital cases are severely burdened with not only understanding the present state of the law, but also divining what it will be next week, next term, or ten years from now when cases presently being tried may still be in the throes of appellate review. Any uncertainty in death penalty cases magnifies the already considerable expenditure of time and resources, not to mention the emotional toll on those involved, particularly at the trial level. Amidst this sea of constant change, Congress permitted the death penalty laws in federal cases to remain largely unenforceable for over twenty years following Fur-man. See H.R.Rep. No. 103-467 (1994). Nevertheless, in 1974, Congress did pass an amendment to the Federal Aviation Act of 1958 that authorized the death penalty for certain acts of air piracy that resulted in the death of another person. Antihi-jacking Act of 1974, Pub.L. No. 93-366, §§ 103 and 104, 88 Stat. 409 (1974). That act also prescribed a procedure for determining whether a sentence of death would be imposed that foreshadowed the method at issue in this case. Id. § 105. Thereafter, Congress passed the Anti-Drug Abuse Act of 1988, which established a procedure for determining who would be sentenced to death following conviction for certain drug-related killings. Pub.L. No. 100-690, § 7001, 102 Stat. 4181 (1988) (codified at 21 U.S.C. § 848). This procedure was a refinement of the one created by the Anti-hijacking Act of 1974, and is strikingly similar to the method at issue here. Six years later, Congress passed the Violent Crime Control and Law Enforcement Act of 1994. Pub.L. No. 103-322, 108 Stat. 1796 (1994). Title VI of that act was denominated the Federal Death Penalty Act of 1994 (FDPA). Id. § 60001. The FDPA authorized the death penalty for a number of additional federal crimes and established a comprehensive procedure for determining who should receive a death sentence when convicted of those or other crimes for which capital punishment was authorized. Id. Title VI. The procedural portion of that act is codified at 18 U.S.C. §§ 3591-3598. The FDPA vests discretion in federal prosecutors to determine whether the government will pursue the death penalty for offenses that authorize capital punishment. 18 U.S.C. § 3593(a). If, in the event of a conviction, the government intends to seek the death penalty, it is required to give notice “a reasonable time before trial” that includes any aggravating factors prosecutors intend to prove as justifying execution. Id. If a conviction is obtained on a death-eligible offense, the trial proceeds into the second phase of a bifurcated procedure in which the government must prove a number of additional facts in order to vest the jury with discretion to recommend a death sentence. Id. § 3593(b). First, as relevant here, the government must establish that the defendant had the mental state described in at least one of four gateway intent factors, which require proof that the defendant: (A) intentionally killed the victim; (B) intentionally inflicted serious bodily injury that resulted in the death of the victim; (C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or (D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act. Id. § 3591(a)(2)(A)-(D). Next, in order for the jury to consider recommending a sentence of death, the government must prove the existence of at least one statutory aggravating factor enumerated in section 3592(c). Then, and only then, may the jury weigh the existence of any aggravating factors against any mitigating factors in order to arrive at a recommended sentence. Id. § 3593(e). The FDPA further limits the jury’s discretion in this matter by stating that, once the initial conditions have been met to begin the weighing process, the jury ... shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Id. The FDPA describes the aggravating and mitigating factors in section 3592. Although the FDPA lists a number of mitigating factors, it makes clear that the defendant may present, and the jury must consider, evidence on any mitigating factor. Id. § 3592(a). The act also enumerates several aggravating factors applicable to homicides, such as the one in this case. Id. § 3592(c). However, the FDPA also authorizes the jury to consider any other aggravating factor for which notice has been given. Id. These additional aggravating factors are typically referred to as non-statutory aggravating factors. Jones, 527 U.S. at 378 n. 2, 119 S.Ct. at 2097 n. 2. With respect to burdens of proof, the act requires the government to prove to a unanimous jury, beyond a reasonable doubt, the gateway intent factors and any aggravating factors. 18 U.S.C. §§ 3591(a)(2), 3593(c), (d). By contrast, the burden is on the defendant to prove mitigating factors, but only by a preponderance of the evidence. Id. § 3593(c). Moreover, any juror who concludes that the defendant has met his burden of establishing the existence of a mitigating factor may consider that factor in determining what sentence to recommend, notwithstanding the fact that other jurors may not believe that the mitigating factor has been proven — -in other words, unanimity is not required for jurors to consider mitigating factors. Id. § 3593(d). However, unanimity is required to make a final recommendation regarding what sentence to impose. Id. § 3593(e). Defendant presents a number of constitutional challenges to the FDPA. Some of his arguments are facial challenges, while others are based on the manner in which the FDPA is being applied to him. Acts of Congress are presumed constitutional, and defendant bears the burden of demonstrating that it is not. See United States v. Dorris, 236 F.3d 582, 584 (10th Cir.2000). That burden is particularly high when he makes a facial challenge. In order to succeed on a facial challenge, defendant must show “that no set of circumstances exists under which the [law] would be valid.” West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1367 (10th Cir.2000) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)) (alterations in original). The court will now consider the various arguments that defendant presents on these matters. III. CONFLICTS BETWEEN THE FDPA AND THE INDICTMENT CLAUSE Defendant argues that the procedures set forth in the FDPA are at odds with the requirements of the Indictment Clause of the Fifth Amendment. In particular, defendant asserts that, based on the Supreme Court’s decisions in Ring v. Arizona and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), all facts necessary to make him eligible for the death penalty must be charged by the grand jury in the indictment. (Doc. 145 at 11-13.) However, defendant further argues that the FDPA is irreconcilable with this requirement because it does not authorize the government to include such facts as the gateway intent factors and the statutory aggravating factors in the indictment. Id. at 14-15. Continuing, defendant argues that the disparity between the process Congress intended in the FDPA and the one required by the Constitution is so great that it is not susceptible to being judicially cured by a saving construction of the FDPA. Id. at 17-24. A. THE FDPA PERMITS THE GOVERNMENT TO ALLEGE GATEWAY INTENT FACTORS AND STATUTORY AGGRAVATING FACTORS IN THE INDICTMENT In construing an act of Congress, the objective of the court is to give effect to the intent of the enacting body. See Zadvydas v. Davis, 533 U.S. 678, 696, 121 S.Ct. 2491, 2502, 150 L.Ed.2d 653 (2001). In so doing, the court will first look to the plain language of the statute. Robbins v. Chronister, 402 F.3d 1047, 1049 (10th Cir. 2005). However, when a statute is silent on a particular point, the court will nevertheless interpret the statutory scheme as a whole in order to give effect to the legislative intent, if possible. See Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1143 (10th Cir.2005) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). Although legislative history may not be the preferred source for identifying the intent of Congress in a particular act, see, e.g., Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 783 n. 12, 120 S.Ct. 1858, 1868 n. 12, 146 L.Ed.2d 836 (2000), it may still be helpful in areas where the statutory language is ambiguous or otherwise unenlightening. See Wyoming v. United States, 279 F.3d 1214, 1230 (10th Cir.2002). In a case such as this, where one construction of a statute would comport with the Constitution, whereas an alternative construction would be unconstitutional, the court is obligated to adopt the construction that will save the statute, so long as such a construction will not do violence to the intent of Congress. Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 173, 121 S.Ct. 675, 683, 148 L.Ed.2d 576 (2001). In this case, the government included all four of the gateway intent factors and three statutory aggravating factors in the superseding indictments. (Docs. 78 at 14-16; 104 at 14-16; 200 at 10-12.) Defendant argues that the FDPA must be construed as prohibiting this procedure; therefore, he continues, those factors must be stricken from the indictment. (Doc. 145 at 24-28, 36-37.) The court must resolve this statutory question first because, if (and only if) defendant is correct in 'his interpretation of the FDPA, then the court will have to determine whether Ring nevertheless requires the gateway intent factors and the statutory aggravating factors to be included in the indictment. If Ring requires that these factors be charged in the indictment, but the FDPA precludes it, then the FDPA will violate the Indictment Clause of the Fifth Amendment. Finding that the FDPA does not prohibit the government from charging these factors in the indictment, the court avoids the constitutional question. The crux of defendant’s argument is that since the FDPA is silent regarding the indictment, but relatively thorough with respect to the rest of the procedure to be followed in a capital case, this evinces Congress’ intent to preclude the use of an indictment to charge the gateway intent factors and the statutory aggravating factors. (Doc. 145 at 21, 24-25.) Defendant further argues that the effect of Apprendi and Ring is to make these factors elements of a brand new federal crime called “capital murder.” Id. at 13. Conversely, he claims that Congress intended that the gateway intent factors and the statutory aggravating factors should be treated as sentencing factors, not elements of a new crime. Id. at 21. Accordingly, defendant concludes that the new conditions imposed on the federal criminal code as a result of Apprendi and Ring are so vastly different from what Congress envisioned when it enacted the FDPA, that the act cannot be reconciled with constitutional requirements. Id. at 22-24. These arguments are not new. They have been presented, in one form or another, to several courts since Ring was decided. In every case, the arguments have been rejected. See, e.g., United States v. Allen, 406 F.3d 940, 949 (8th Cir.2005), petition for cert, filed, (U.S. Sept. 29, 2005) (No. 05-6764); United States v. Barnette, 390 F.3d 775, 788-90 (4th Cir.2004), vacated; — U.S. —, 126 S.Ct. 92, 163 L.Ed.2d 32 (remanding for reconsideration in light of Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005)); United States v. Robinson, 367 F.3d 278, 290 (5th Cir.2004), cert, denied, 543 U.S. 1005, 125 S.Ct. 623, 160 L.Ed.2d 466 (2004); United States v. Mayhew, 380 F.Supp.2d 936, 943 (S.D.Ohio 2005); United States v. Le, 327 F.Supp.2d 601, 609-10 (E.D.Va.2004); United States v. Taylor, 302 F.Supp.2d 901, 904 (N.D.Ind.2003); United States v. Haynes, 269 F.Supp.2d 970, 982-83 (W.D.Tenn.2003); United States v. Acosta-Martinez, 265 F.Supp.2d 181, 184 (D.P.R.2003); United States v. Matthews, 246 F.Supp.2d 137, 146-47 (N.D.N.Y.2002); United States v. Lentz, 225 F.Supp.2d 672, 680-81 (E.D.Va.2002). In particular, the Supreme Court has stopped short of declaring that the death-eligibility factors are elements of a new crime. Instead, the Court has declared that any fact that increases the potential penalty faced by a defendant must be treated as “the functional equivalent of an element of a greater offense.” Ring, 536 U.S. at 609, 122 S.Ct. at 2443 (quoting Apprendi, 530 U.S. at 494, n. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435). The Court tends not to choose such critical words lightly. Had it intended to change sentencing factors into elements, it could have said so. Rather, the Court chose to use language that requires some facts to be treated as if they were elements. Id. This language has been interpreted simply to mean that such facts must be alleged in the indictment and proved to a unanimous jury beyond a reasonable doubt. See, e.g., Robinson, 367 F.3d at 284; United States v. Jones, 235 F.3d 1231, 1236 (10th Cir.2000) (holding that drug quantity must be included in indictment in order to expose defendant to risk of longer sentence as result thereof). Turning to the question of whether the FDPA precludes the government from including the gateway intent factors and the statutory aggravating factors in the indictment, courts resolving this question have found no conflict between the FDPA and the Indictment Clause. See, e.g., Allen, 406 F.3d at 949; Barnette, 390 F.3d at 788-90; Robinson, 367 F.3d at 290. First, it can be a dangerous proposition to interpret a statute by what it does not say. Brovm v. Gardner, 513 U.S. 115, 121, 115 S.Ct. 552, 557, 130 L.Ed.2d 462 (1994) (“[Cjongressional silence lacks persuasive significance.” (Quotations omitted)). Such a negative inference is a weak indicator of legislative intent. Moreover, the court notes that the FDPA does not purport to abrogate the remainder of the criminal code as it relates to criminal procedure. Thus, the provisions of the FDPA must be considered in light of the entire procedural code. In particular, 18 U.S.C. § 3361, relating to indictments, refers the reader to the Federal Rules of Criminal Procedure. Rule 7 directs the government to include in the indictment “the essential facts constituting the offense charged.” Defendant argues that this language is not broad enough to authorize inclusion of the gateway intent factors or the statutory aggravating factors. (Doc. 145 at 24.) However, under his reading of Ring, these factors are precisely the type of “essential facts” that should be included in the indictment under Rule 7. And even though the court rejects defendant’s interpretation of Ring, assuming the gateway intent factors and the statutory aggravating factors must be treated as the functional equivalent of elements, they would clearly fall within the realm of essential facts contemplated by Rule 7. Furthermore, the court rejects defendant’s assertion that Congress was necessarily legislating toward the minimum constitutional requirements when it passed the FDPA. (Doc. 145 at 21-22.) Specifically, defendant argues that Congress enacted the FDPA in light of the Supreme Court’s holding in Walton, which authorized judge-found sentencing factors that made a defendant eligible for the death penalty. Id. However, the court is not so quick to assume that Congress automatically legislates down to the bare minimum required by the Constitution. Congress is not a ward of the courts. As a co-equal branch of our tripartite government, Congress, as much as the other branches, has a duty to uphold the Constitution. The federal courts are not the sole guardians of the rights enumerated therein. Sometimes Congress may view the Constitution as affording greater protections to individual rights than what has been articulated by the courts. For example, at least as far back as 1974, Congress concluded that it was inappropriate to execute persons for crimes committed prior to reaching the age of 18. Antihijacking Act of 1974, Pub.L. No. 93-366, § 105, 88 Stat. 409. That protection was continued in both the Anti-Drug Abuse Act of 1988 and the FDPA. See 18 U.S.C. § 3591(a); 21 U.S.C. § 848(1). By contrast, it took the Supreme Court an additional 31 years, until 2005, to conclude that it was unconstitutional to impose capital punishment on persons for crimes committed before turning 18. Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 1197-98, 161 L.Ed.2d 1 (2005). Turning to the FDPA, itself, the legislative history of the act is silent regarding Walton. On the other hand, two reports from the House of Representatives Committee on the Judiciary specifically addressed other Supreme Court cases that Congress had in mind when enacting the FDPA. See H.R.Rep. No. 103-466 (1994) (discussing Furman, Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987)); H.R.Rep. No. 103-467 (1994) (discussing Furman, Gregg, Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990), Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), and Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988)). Nevertheless, the court is cautious about relying on what the legislative reports do not say, just as it is cautious about relying on what the FDPA does not say regarding the use of indictments. What House Report No. 103-467 does contain is a minority statement from a number of representative who opposed the FDPA. These members specifically upbraided their majority colleagues for affording more protections to a capital defendant than the Constitution requires. While a minority statement is by no means authoritative, it certainly suggests that some members of Congress felt the FDPA goes too far in protecting the rights of defendants charged with a death-eligible offense. Finally, the court looks at the substantive rights granted to defendants in the FDPA. These include the right to have the death-eligibility factors and all aggravating factors proved to a jury. 18 U.S.C. § 3593(b). The burden is on the government to prove these facts beyond a reasonable doubt, id. §§ 3591(a)(2), 3593(c)(2), and the jury must unanimously agree that the factors have been so proved. Id. § 3593(d). Last of all, the jury must unanimously agree on the recommended punishment. Id. § 3593(e). These rights extend far beyond the protections mandated by Walton. Indeed, they sound a lot like the Sixth Amendment protections applicable to elements of a crime. Accordingly, it appears that Congress may well have intended to go further than the constitutional mínimums set by Walton, and instead intended that these sentencing factors be treated as the “functional equivalent” of elements, even though that particular phrase had not yet been coined in a Supreme Court opinion when the FDPA was enacted. Ultimately, the court declines to make a specific finding as to what Congress intended on this point. Instead, the court merely notes that it is defendant’s burden to prove that the FDPA is unconstitutional in light of Ring. Based on the foregoing discussion, the court finds that defendant has failed to meet his burden to show that Congress intended to preclude the use of an indictment to charge the gateway intent factors and the statutory aggravating factors. Since the FDPA does not expressly preclude use of the indictment, and since Rule 7 directs that essential facts be included in the indictment, the court harmonizes those two provisions to authorize the government to include these death-eligibility factors in the indictment, as it has done here. While Congress may not have foreseen the turnaround in capital jurisprudence that has now taken place, it seems more plausible that Congress intended that the FDPA should be sufficiently flexible to adapt to such changes, rather than intending the act to be an immovable barrier designed to trample any attempts at extending constitutional protections to the accused. Since constitutional protections trump statutory protections, it makes sense that the government’s election to charge the gateway intent factors and the statutory aggrava-tors in the indictment is the best way to protect defendant’s constitutional rights. B. MISCELLANEOUS ARGUMENTS REJECTED Having found that the FDPA and Federal Rule of Criminal Procedure 7 permit the government to charge gateway intent factors and statutory aggravating factors in the indictment, several of defendant’s additional arguments are implicitly rejected. These include his arguments regarding separation of powers, the non-delegation doctrine, the implications of United States v. Jackson, severability, and problems related to the role of the grand jury. (Doc. 145 at 15-28.) Other courts considering some of these same arguments have likewise rejected them. See, e.g., United States v. Jordan, 357 F.Supp.2d 889, 894 (E.D.Va.2005) (separation of powers); United States v. Haynes, 269 F.Supp.2d 970, 972-73, 979-83 (W.D.Tenn.2003) (United States v. Jackson issue and grand jury problems); see also United States v. McCullah, 76 F.3d 1087, 1106-07 (10th Cir.1996) (rejecting similar challenges to the death penalty scheme under 21 U.S.C. § 848). However, the court finds that two issues raised by defendant merit further discussion. 1. Relaxed Evidentiary Standard First, defendant claims that the FDPA violates his right to due process because it employs a relaxed evidentiary standard at the sentencing phase. (Doc. 145 at 28-34.) Specifically, the FDPA provides that “[ijnformation 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 the FDPA’s failure to make the Federal Rules of Evidence applicable during the sentencing phase renders the act unconstitutional. Contrary to defendant’s suggestion, the Constitution does not mandate application of the Rules of Evidence. See United States v. Fell, 360 F.3d 135, 138, 144-45 (2d Cir.2004). Constitutional requirements regarding the admission of evidence exist separate and apart from mere evi-dentiary rules. Id.; see also H.R.Rep. No. 93-1597 (1974), as reprinted in 1974 U.S.C.C.A.N. 7098, 7105-06 (discussing 1974 amendments to Federal Rule of Evidence 804(b)(3) and noting “the general approach in the Rules of Evidence [is] to avoid attempting to codify constitutional evidentiary principles.”) Indeed, the court routinely considers both the Constitution and the Federal Rules of Evidence when making evidentiary rulings, particularly during criminal trials. In fact, sometimes the requirements of these two bodies of law conflict, in which case the constitutional requirements control the outcome. This principle is clearly shown in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), a case upon which defendant relies heavily. However, the court finds that Crawford weighs strongly against defendant on this point. In Crawford, the Supreme Court considered arguments that Washington Rule of Evidence 804(b)(3) clashed with the Sixth Amendment’s Confrontation Clause. Washington’s rule allowed the trial judge to admit hearsay statements when the de-clarant was unavailable, the statement was made against interest, and where “corroborating circumstances clearly indicate the trustworthiness of the statement.” The Court found that a conflict existed between Washington Rule 804(b)(3) and the Confrontation Clause when the hearsay statement was testimonial in nature, and that the Confrontation Clause trumped the state evidentiary rule. See Crawford, 541 U.S. at 61,124 S.Ct. at 1370. Washington’s Rule 804(b)(3) is, in all respects relevant here, indistinguishable from Federal Rule of Evidence 804(b)(3). Thus, the lesson from Crawford that forecloses defendant’s argument is that the Constitution includes its own set of eviden-tiary rules, and therefore does not rely on the Federal Rules of Evidence to make a particular proceeding constitutional. The fact that 18 U.S.C. § 3593(c) makes the Federal Rules of Evidence inapplicable during the sentencing phase of a capital case does not strip defendant of any constitutional protections. The court will endeavor to ensure, as it always does, that any evidence admitted meets constitutional standards. Moreover, a closer reading of section 3593(c) shows that it affords defendant more protection than he would receive under the Federal Rules of Evidence. Under Rule 403, the court is only authorized to exclude relevant evidence if its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” By contrast, section 3593(c) authorizes exclusion of evidence if it is merely “outweighed by” similar concerns of unfair prejudice and confusion. Defendant’s burden of showing unfair prejudice and the like is unmistakably lower under 3593(c) than under Rule 403 by virtue of the fact that Congress chose to omit the word “substantially” from the burden established under the FDPA. See Fell, 360 F.3d at 145. Finally, the Supreme Court has made clear that more is generally better when it comes to the quantity of evidence that a jury should be permitted to consider when making a decision regarding whether to recommend a death sentence. Gregg, 428 U.S. at 203-04, 96 S.Ct. at 2939. This principle is embodied in the FDPA wherein a defendant is given the right to put forth virtually anything as a mitigating factor. 18 U.S.C. § 3592(a). If the Federal Rules of Evidence applied at the sentencing phase, it is arguable that some of defendant’s mitigating evidence might be excluded as irrelevant, particularly evidence relating to his childhood and family background. See United States v. Sampson, 275 F.Supp.2d 49, 94 (D.Mass.2003). The Court finds that the relaxed evidentiary standard under the FDPA does not render the act unconstitutional. Accord Fell, 360 F.3d at 145-46; United States v. Lee, 374 F.3d 637, 648 (8th Cir.2004); Jones, 132 F.3d at 241; Le, 327 F.Supp.2d at 607-08; United States v. Rodriguez, 880 F.Supp.2d 1041, 1054 (D.N.D.2005). 2. The Presumption of Innocence For his final argument regarding the constitutionality of the FDPA, defendant argues that the act deprives him of the presumption of innocence, thereby violating his constitutional right to a fair trial. (Doc. 145 at 35.) It is now generally recognized that the “presumption of innocence” is an inaccurate, shorthand description of the right of the accused to “remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion; i.e., to say in this case, as in any other, that the opponent of a claim or charge is presumed not to be guilty is to say in another form that the proponent of the claim or charge must evidence it.” Wigmore 407. The principal inaccuracy is the fact that it is not technically a “presumption”-a mandatory inference drawn from a fact in evidence. Instead, it is better characterized as an “assumption” that is indulged in the absence of contrary evidence. Carr v. State, 192 Miss. 152, 156, 4 So.2d 887, 888 (1941); accord, McCormick 806. Taylor v. Kentucky, 436 U.S. 478, 483 n. 12, 98 S.Ct. 1930, 1934, 56 L.Ed.2d 468 (1978). The use of the phrase “presumption of innocence” is not constitutionally mandated. Id. at 485, 98 S.Ct. at 1935; see also Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994). However, when the entirety of the jury instructions are inadequate to convey the fact that it is the prosecution’s duty, if it can, to prove defendant’s guilt beyond a reasonable doubt, and that defendant has no burden to prove anything, then a failure to instruct on the presumption of innocence may violate a defendant’s right to a fair trial. See id. at 436 U.S. at 486-87, 98 S.Ct. at 1935. By contrast, when the “totality of the circumstances — including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors,” show that a defendant had a fair trial, a failure to instruction on the presumption of innocence does not violate the Constitution. Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct. 2088, 2090, 60 L.Ed.2d 640 (1979) (per curiam); see also Delo v. Lashley, 507 U.S. 272, 278, 113 S.Ct. 1222, 1226, 122 L.Ed.2d 620 (1993) The Supreme Court has noted that an instruction on the presumption of innocence is somewhat redundant if a jury is instructed on the government’s burden of proof beyond a reasonable doubt. See Taylor, 436 U.S. at 484-85, 98 S.Ct. at 1934. However, the Court also observed that such an instruction can help a lay juror’s understanding of the government’s burden and the defendant’s corresponding lack of a duty to prove anything. Id. In this case, rather than help the jury as in Taylor, an instruction on the presumption of innocence at the penalty phase would, in fact, cause the jury more confusion. The confusion arises from the fact that, at the penalty phase of an FDPA proceeding, the jury has already found the defendant guilty of the underlying murder charge. Thus, this would seem to be one of the most inappropriate times to use an “inaccurate shorthand description” to instruct a jury. Id. 436 U.S. at 483 n. 12, 98 S.Ct. 1934 n. 12. Such a charge would tell the jury that this guilty person is still somehow presumed innocent. Innocent of what? The jury’s decision — life or death— would have no rational connection to the concept of innocence, which means freedom from guilt. Such an instruction would then necessarily give rise to some other instruction that endeavors to explain what it means for a guilty person to be considered innocent and how the jury is to perform the mental gymnastics necessary to meaningfully employ that presumption in its deliberations. From the abundance of cases analyzing death penalty issues, defendant cites not a single authority for his proposition or how it can be practically employed. Nor does he propose language for and instruction. Based on Taylor, the court finds that the better course is to avoid the “inaccurate shorthand” associated with the presumption of innocence. Instead, if this case proceeds to a penalty phase, the jury will be instructed in no uncertain terms that it is the government’s burden to prove, if it can, to a unanimous jury beyond a reasonable doubt everything required to make defendant eligible for the death penalty, and everything required for the jury to return a recommendation of death, as contemplated by both the FDPA and the Constitution. The jury will also be instructed in unequivocal terms that defendant has no burden or duty to prove anything (unless, or course, defendant elects to present evidence in mitigation, in which case the jury will be instructed on the preponderance standard, lack of a unanimity requirement to consider mitigating factors, etc.). Under those circumstances, defendant will not be deprived of his constitutional right to a fair trial. IV. GATEWAY INTENT FACTORS Defendant next argues that the gateway intent factors must be stricken from the notice of intent to seek the death penalty (NOI) because the government alleged all four of the requisite mental states. (Doc. 145 at 37.) In the alternative, defendant argues that the government must be forced to elect one of the mental states and dismiss the other three. Id. at 38. He bases his argument on the theory that by alleging all four mental states, the government has deprived the gateway intent factors of their ability to perform the required constitutional narrowing function of determining who is eligible for the death penalty. Id. He further argues that by alleging all four mental states, the government deprives him of notice of the mental states that he will be required to defend against, and it promotes an unconstitutional skewing of the weighing process by placing duplicative aggravating factors before the jury. Id. at 38, 42. A. FAILURE TO NARROW Defendant’s narrowing argument is foreclosed by McCullah. In McCullah, the Tenth Circuit analyzed a death penalty ease under 21 U.S.C. § 848. The similarities between section 848 and the FDPA dictate the result in this case. In order for a defendant to be eligible for the death penalty under section 848, the sentencing jury must first find that he had at least one of four mental states. 21 U.S.C. § 848(k), (n)(l). These mental states are, as relevant here, identical to the mental states contained in the FDPA’s gateway intent factors. Compare 21 U.S.C. § 848(n)(l), with 18 U.S.C. § 3591(a)(2). In McCullah, the defendant argued that the factors set forth in section 848(n)(l) failed to perform the constitutionally mandated narrowing function. McCullah, 76 F.3d at 1109. The Tenth Circuit rejected this argument, concluding that the narrowing function could be performed by the statute alone, or in combination with other aggravating factors. Id. at 1109-10.- If the statute defining the offense of conviction accomplished the necessary degree of narrowing, neither the intent factors nor the other aggravating factors needed to perform that function. See id. The Court of Appeals went on to conclude that section 848(e), which limited the field of death eligible murders to those accomplished in furtherance of a continuing criminal enterprise or similar offense, was alone sufficient to perform the required narrowing. Id. at 1109. Moreover, the court found that additional narrowing was accomplished by the requirement that a jury find not only a mental state described in section 848(n)(l), but also one of the additional statutory aggravating factors listed in sections 848(n)(2)-(n)(12), such that any doubts about whether section 848(e) was sufficiently narrow on its own were really beyond dispute. Id. (“The narrowing functions of §§ 848(e) and 848(k) clearly satisfy the constitutional requirements of Lowen-field[ v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) ].”) In this case, defendant is charged under two separate statutes that carry a potential death sentence. Count Five of the indictment charges him with murder through the use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1) and (j)(l). (Doc. 200 at 5.) A look at the statutory scheme involved in obtaining a conviction under Count Five shows the extraordinary degree of narrowing accomplished by the statutes themselves, before resort to the FDPA’s gateway intent factors and statutory aggravating factors even occurs. In order to obtain a conviction under Count Five that would expose defendant to a potential death sentence, the government must first prove a violation of 18 U.S.C. § 924(c)(1). That statute proscribes, in relevant part, the use of a firearm during a drug trafficking crime. 18 U.S.C. § 924(c)(1)(A). A drug trafficking crime is defined in part as “any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.).” The indictment charges that the predicate drug trafficking crime is the attempted manufacture of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). (Doc. 200 at 4-5.) If the government can prove the defendant used a firearm during a drug trafficking crime, the focus then shifts to section 924(j)(l), which authorizes a potential death sentence if the use of the firearm caused the death of another person, and that killing would amount to murder under the general murder statute, 18 U.S.C. § 1111. This statutory scheme takes the universe of all murders and murderers, circumscribed by 18 U.S.C. § 1111, and narrows it substantially. It begins by limiting the death penalty to those murders committed with a firearm. The pool is further reduced by limiting death eligible offenses to those committed during or in relation to a drug trafficking offense. The court finds that this statutory scheme, like the one in McCullah, is sufficient by itself to accomplish the narrowing function required by the Constitution. Furthermore, even if this scheme is not sufficient on its own, the additional narrowing accomplished by the requirement that the sentencing jury find at least one statutory aggravating factor before it may consider recommending the death penalty, 18 U.S.C. § 3593(e)(2), is sufficient to satisfy constitutional concerns. Accord Le, 327 F.Supp.2d at 608-09. Thus, the court need not decide whether the gateway intent factors, either alone or in tandem, perform any narrowing whatsoever. Similarly, the offense charged in Count Six of the indictment is significantly narrower than the universe of all murders contemplated under the general murder statute, 18 U.S.C. § 1111. Count Six charges defendant with murder under 18 U.S.C. § 1512(a)(1)(C). That section states that Whoever kills or attempts to kill another person, with intent to ... prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense ... shall be punished as provided in paragraph (3). Subparagraph (3)(A) goes on to state The punishment for an offense under this subsection is ... in the case of murder (as defined in section 1111), the death penalty or imprisonment for life. Thus, the offense charged in Count Six begins with the definition of murder under 18 U.S.C. § 1111, and then narrows that definition to an extraordinary degree by requiring proof that the murder was committed for the purpose of preventing the victim from communicating to federal officials information relating to the defendant’s involvement in a federal crime. Like the offense charged in Count Five, the court finds that the murder charge in Count Six is based on a statute that itself is sufficiently specific to satisfy the constitutional narrowing requirement. In the alternative, the court finds that the combination of this statutory definition of murder and the statutory aggravating factors alleged in this case is sufficient to perform the required narrowing. Therefore, there is no need to consider whether the gateway intent factors perform any narrowing at all. B. DUPLICATION OF AGGRAVATING FACTORS The court now turns to defendant’s argument that permitting the government to allege all four mental states described by the gateway intent factors works an unconstitutional duplication of aggravating factors. (Doc. 145 at 39-42.) Defendant relies heavily on McCullah’s conclusion that alleging multiple mental states under 21 U.S.C. § 848(n)(l) led to an unconstitutional skewing of the weighing process. McCullah, 76 F.3d at 1111-12. However, this particular argument is foreclosed not by the similarities between section 848 and the FDPA, but by the differences. Under section 848, the subsection (n)(l) mental states are also treated as aggravating factors that the jury can consider in determining whether to recommend a death sentence. In McCullah, the government alleged that the defendant had two of the mental states described in section 848(n)(l): 1) that the defendant “intentionally engaged in conduct intending that the victim be killed or that lethal force be employed against the victim, which resulted in the death of the victim,” 21 U.S.C. § 848(n)(l)(C); and, 2) that the defendant intentionally engaged in conduct which— (i) the defendant knew would create a grave risk of death to a person, other than one of the participants in the offense; and (ii) resulted in the death of the victim. Id. § 848(n)(l)(D). The Court of Appeals concluded that the (n)(l)(C) factor “necessarily subsume[d]” the (n)(l)(D) factor. McCullah, 76 F.3d at 1111. Since these mental states were not only eligibility factors, but also aggravating factors that played a role in'the jury’s ultimate decision regarding a death sentence, McCullah found that this overlap resulted in “double counting of aggravating factors,” which “has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally.” Id. Later cases have clarified that the key prerequisite for finding an aggravator unconstitutionally duplicative is that it is “necessarily subsume[d]” by another aggravating factor. Cooks v. Ward, 165 F.3d 1283, 1289 (10th Cir.1998). Unlike section 848, the gateway intent factors under the FDPA are not treated as aggravating factors that the jury is permitted to weigh in making a sentencing recommendation. See 18 U.S.C. § 3593(e). Instead, the gateway intent factors are mere eligibility factors. The jury must find at least one in order for it to even consider recommending a death sentence. However, once the jury finds that one of these mental states existed, the role of the gateway intent factors is complete, and the jury may not consider those factors in any of its subsequent findings. Accordingly, even if one gateway intent factor “necessarily subsumes” another, McCullah, 76 F.3d at 1111, this cannot lead to an unconstitutional duplication of aggravating factors with concomitant skewed weighing because the gateway intent factors are not aggravating factors — they have no role in the weighing process through which the jury makes its ultimate sentencing recommendation. Defendant acknowledges this interpretation of the statutory scheme; however, he asserts that, human nature being what it is, capital jurors could not possibly put these duplicative factors out of them minds. (Doc. 145 at 39 n. 16.) In other words, defendant argues, the jurors will likely consider the gateway intent factors for an unauthorized purpose — making a sentencing recommendation — and thus the improper aggregation of factors condemned in McCullah would nevertheless occur. Id. Our entire system of justice is premised on the idea that jurors can and will follow instructions. See United States v. Lamp-ley, 127 F.3d 1231, 1238 (10th Cir.1997) (quoting Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1706-07, 95 L.Ed.2d 176 (1987)). The court is committed to providing the jurors with clear instructions on the proper use of all the various elements under the FDPA, including the gateway intent factors, mitigating factors, statutory aggravating factors, and non-statutory aggravating factors. The jury will be told what they can and cannot do with each of these factors. The law presumes the jurors will follows those instructions. Defendant’s arguments to the contrary are rejected. C. DENIAL OF FAIR NOTICE For his final argument regarding the gateway intent factors, defendant claims that by alleging all four mental states, the government denies him fair notice of elements against which he must defend. (Doc. 145 at 42.) However, the government’s response makes clear that it is simply focused on defendant’s mental state at the time he allegedly shot Sheriff Samuels. (Doc. 191 at 33-34.) In that regard, it is no mystery to defendant or anyone else as to what “elements” he will be required to defend against. The government will attempt to prove to the jury that defendant “intentionally killed the victim.” 18 U.S.C. § 3591(a)(2)(A). It will argue alternatively that, if the jury is not convinced defendant intended to kill the Sheriff, then the evidence proves he “intentionally inflicted serious bodily injury that resulted in the death of the victim.” Id. § 3591(a)(2)(B). If the jury does not believe that argument, the government will resort to the mental state under section 3591(a)(2)(C), and ultimately, if necessary, section 3591(a)(2)(D). The gateway intent factors set forth in section 3591(a)(2) can generally be described as listing in descending order of culpability those mental states that would satisfy constitutional concerns for imposing the death penalty. The first two factors describe a person who personally brings about the death of another while intending to do so, or at least intending to inflict life threatening wounds. Id. §§ 3591(a)(2)(A)-(B). The third factor describes a person who intentionally involves himself in an act knowing that someone, though not necessarily the actual victim, would be killed or subjected to lethal force. Id. § 3591(a)(2)(C). And finally, the fourth factor describes a person who intentionally engages in violent conduct that could kill someone, and death results, such that the perpetrator’s actions demonstrated such a degree of criminal negligence that it can be fairly characterized as “reckless disregard for human life.” Id. § 3591(a)(2)(D). It is patently obvious from the indictment, the NOI, and the government’s response to this motion that the prosecution simply intends to present alternative arguments to the jury that when defendant shot the sheriff, defendant exhibited a degree of mental culpability sufficient to satisfy at least one of the gateway intent factors. If the evidence is sufficient to submit those alternative theories to the jury, then the court will do so. Just as in any other case, if the government fails to present evidence from which a reasonable juror could find that a particular mental state existed, the jury will not be instructed on that mental state, and will not be permitted to return a finding thereon. The court finds that defendant has sufficient notice of the facts underlying the government’s theories on his mental state that defendant can defend himself at trial. Y. STATUTORY AGGRAVATING FACTORS Defendant’s next request is for the court to dismiss all the statutory aggravating factors because they fail to perform the constitutional narrowing function, because they are vague or overbroad, and/or because they are not supported by the facts. (Doc. 145 at 43.) The purpose of aggravating factors in a capital sentencing scheme like the FDPA is to narrow the universe of murderers who are eligible for the death penalty and to channel the sentencer’s discretion in determining whether to recommend a death sentence. See Lowenfield, 484 U.S. at 244, 108 S.Ct. at 554. To that end, aggravating factors must provide the jury with clear, objective descriptions of those circumstances that distinguish murderers who should be executed from those who should be spared. See Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 3099, 111 L.Ed.2d 606 (1990). Consequently, aggravating factors cannot be defined in vague or overly broad terms such that the sen-tencer is vested with so much discretion that it may recommend the death penalty arbitrarily. Proffitt, 428 U.S. at 254 n. 11, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913; see also Duvall v. Reynolds, 139 F.3d 768, 792 (10th Cir.1998). Instead, the aggravating factors must channel the sentencer’s discretion and guide that body through the process of rendering a recommendation regarding appropriate punishment. See Lewis, 497 U.S. at 774, 110 S.Ct. at 3099. A. GRAVE RISK OF DEATH FACTOR Defendant argues that the first statutory aggravating factor listed in the NOI must be dismissed as “duplicative and vague.” (Doc. 145 at 43.) The first aggra-vator reads as follows: The defendant, in the commission of the offense, knowingly created a grave risk of death to one or more persons in addition to the victim of the offense. (18 U.S.C. § 3592(c)(5)). (Doc. 133 at 3.) Defendant asserts that this aggravating factor is too vague “because there is no clear meaning given to the term ‘grave risk’ of death and the ‘additional persons’ is not identified.” (Doc. 145 at 43.) An aggravating factor “is not unconstitutional if it has some ‘common-sense core of meaning ... that criminal juries should be capable of understanding.’ ” Tuilaepa v. California, 512 U.S. 967, 973, 114 S.Ct. 2630, 2636, 129 L.Ed.2d 750 (1994) (quoting Jurek, 428 U.S. at 279, 96 S.Ct. at 2959). Both the Tenth Circuit and the Supreme Court have concluded that a similar aggravating circumstance, that a defendant created a “great risk of death” to additional persons, is not void for vagueness. See Proffitt, 428 U.S. at 256, 96 S.Ct. at 2968; Brecheen v. Reynolds, 41 F.3d 1343, 1360-61 (10th Cir.1994). Moreover, vagueness is evaluated not only in light of the words used to define the aggravator, but also based on the construction given that factor by the courts. See Proffitt, 428 U.S. at 255, 256, 96 S.Ct. at 2968; Brecheen, 41 F.3d at 1361; see also Jones, 527 U.S. at 400-01, 119 S.Ct. at 2108 (holding that even counsels’ closing arguments can cure vagueness problems in the wording of aggravating factors). As applicable in the trial court, the construction of an aggravating factor is reflected largely by the jury instructions relating to that factor. Cf United States v. Allen, 247 F.3d 741, 786 (8th Cir.2001), vacated 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002) (remanding for reconsideration in light of Ring), and affd on reh’g 357 F.3d 745 (8th Cir.2004) (en banc); United States v. Barnette, 211 F.3d 803, 819 (4th Cir. 2000). Accordingly, the court is confident based on Proffitt and Brecheen, that the parties and the court can craft jury instructions that will adequately define “grave risk” for the sentencer. Accord Allen, 247 F.3d at 786; Barnette, 211 F.3d at 819; United States v. McVeigh, 944 F.Supp. 1478, 1490 (D.Colo.1996). With respect to defendant’s argument that the government has failed to identify the additional persons who are the subject of this aggravating factor, the government provided this information in its response to another motion that makes similar arguments. (Docs.140, 186.) The government revealed that this factor is based on allegations that defendant fired two rounds from his .44 caliber handgun into the kitchen area of the residence while deputies were attempting to remove the wounded sheriff from the house. The government asserts that two other people, Darrell and Belinda Cooper, were also in or near the vicinity of the kitchen when the shots were fired, and that the bullets’ trajectories were sufficiently close to the Coopers to place them at risk of being hit. (Doc. 186 at 3, 5-7,11.) The “grave risk of d