Full opinion text
BIRCH, Circuit Judge: This appeal challenges the first death sentence imposed under the Anti-Drug Abuse Act of 1988, 21 U.S.C. § 848(e) et seq. The defendant Ronald David Chandler appeals both his conviction and sentence on the capital charge as well as his convictions and sentences on other related counts. We VACATE Chandler’s conviction and sentence for conspiracy. We AFFIRM all other convictions and sentences, including Chandler’s death sentence. I. BACKGROUND On May 8, 1990, Charles Ray Jarrell Sr. and Marlin Shuler drove to Snow’s Lake in Piedmont, Alabama. At the lake, Jarrell and Shuler engaged in target practice with two pistols that Jarrell had brought along. Jar-rell turned his gun at Shuler and then shot and killed him. Later that year the State of Alabama indicted Jarrell, Jarrell’s son Billy Joe, and Chandler for the murder of Shuler. These indictments were ultimately dismissed, but the state prosecutor handling those charges was appointed Special Assistant United States Attorney and assisted in this prosecution. The United States issued a superseding indictment on January 9, 1991. Count One of the indictment charged Chandler, Jarrell and 14 other individuals with conspiracy to possess with intent to distribute and with distribution of over 1,000 kilograms of marijuana and 1,000 marijuana plants, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Chandler was also indicted on eight other counts: Count Two, engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848(a); Count Three, murder while engaged in and working in furtherance of a continuing criminal enterprise, in violation of 21 U.S.C. § 848(e); Counts Four and Five, aiding and abetting the use or carrying of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and Counts Six, Seven, Eight, and Nine, money laundering in violation of 18 U.S.C. § 1956. On January 17, 1991, Jarrell entered into a plea agreement with the government. Jar-rell pleaded guilty to the conspiracy charge in Count One of the indictment and agreed to testify on behalf of the government at Chandler’s trial. In exchange, Jarrell received immunity from prosecution for Shuler’s murder from the State of Alabama and the United States. On January 30, 1991, the government served notice, pursuant to 21 U.S.C. § 848(h)(1), of its intention to seek the death penalty against Chandler for the murder of Shuler under Count Three. The notice stated that the government would attempt to prove the following aggravating factors as the basis for the death penalty: (1) Chandler did intentionally kill Shuler; (2) Chandler did intentionally engage in conduct intending that Shuler be killed; (3) Chandler procured the murder of Shuler by payment and promise of payment of money; and (4) Chandler committed the murder after substantial planning and premeditation. Chandler’s trial was severed from the other co-conspirators’ trials and commenced on March 19, 1991. The government’s evidence consisted of over 40 witnesses, including a number of indicted and unindicted co-eon-spirators. Their testimony described the following events. During the years of 1988 to 1990, Chandler developed an extensive marijuana growing and distribution operation that was centered in northeast Alabama, but operated in both Alabama and neighboring states. Chandler developed his supply of marijuana through the local farming of thousands of marijuana plants in northeast Alabama and the importation of marijuana from as far away as Texas. Chandler then used an extensive distribution network to generate substantial profits from his illegal activities. The profits were used in part to fund the growth of his operation and in part to purchase land and property. The size of Chandler’s operation was significant. In 1989 and again in 1990, Chandler helped prepare and cultivate over 100 plots of land dedicated solely to marijuana plants. In 1989, Chandler harvested most of the several thousand marijuana plants that were originally planted. In 1990, the harvest was disturbed by government raids that seized over 500 marijuana plants from Chandler’s plots. In overseeing this operation, Chandler was not only actively involved in the cultivation of the plants, but he also hired several people to guard the plots during the growing season. Chandler also arranged for supplies of marijuana from other locations, including a major source in Texas. In a four month period in 1990, Chandler engaged Jarrell as a courier to import approximately 245 pounds of marijuana from Texas in four deliveries. A fifth delivery was thwarted when a different courier was arrested with $106,000. Chandler also obtained supplies of marijuana in neighboring states. Chandler developed a distribution system of couriers and dealers to facilitate his sale of marijuana. On occasion, Chandler gave his couriers firearms to provide protection for his marijuana. It was a perceived threat to this dealer network that caused Chandler to resort to murder. One of Chandler’s dealers was Donna Shu-ler, the half-sister of both Chandler’s wife and Jarrell. On March 2, 1990, state law enforcement officers executed a search warrant on Donna Shuler’s home in Piedmont, Alabama, and uncovered several bags of marijuana totaling approximately one kilogram. The search warrant was based upon the affidavit of the local police chief. In the affidavit, the police chief stated that Shuler, the former husband of Donna Shuler, had complained on at least three occasions that Donna Shuler was dealing drugs from her home. Following the search, Donna Shuler was charged with drug trafficking. Donna Shuler’s attorney, Bill Broome, waived the formal preliminary hearing in exchange for the opportunity to look through the local district attorney’s file, including the police report. On April 27, 1990, Broome made copies of the search warrant and the police chiefs affidavit and supplied copies of them to Donna Shuler. A subsequent search of Chandler’s residence on September 21, 1990, found a slip of paper which contained the words “Bill Broome” and “copy of police report.” Following the search of Donna Shuler’s apartment, Chandler approached another of his dealers, Raymond Pointer, and asked him if he “was interested in making a little bit bigger money.” RVII-75. Chandler told Pointer that he would pay him $5,000 to kill Shuler because Shuler “had gone and busted somebody in Piedmont.” RVII-77. Chandler then opened a briefcase containing packets of hundred dollar bills and a nine millimeter pistol. Chandler also advised Pointer that he would pay him even more money if Pointer would kill the Piedmont Chief of Police. Pointer, however, declined Chandler’s offer. On the morning of May 8, 1990, Chandler arrived at Jarrell’s house. Also present at the house was Shuler. Upon seeing Shuler, Chandler warned Jarrell, “He’s going to cause me and you a whole lot of trouble,” and “You need to go on and take care of him and I still got that $500.00.” RVII-10. Jarrell understood Chandler to be referring to a conversation Jarrell had with Chandler in January, 1990. In that conversation, which occurred before the search of Donna Shuler’s home, Chandler announced that Jarrell should eliminate Shuler due to all of the problems that Shuler had caused for Jarrell and his family, declaring that he would pay Jarrell $500 if Jarrell accomplished the task. At that time, Jarrell thought that Chandler was joking. Chandler then left Jarrell’s house and Jar-rell and Shuler spent the morning drinking heavily. The two then drove to Snow’s Lake where they engaged in target practice with two guns Jarrell had brought: a .380 pistol owned by Jarrell and a nine millimeter pistol that Chandler had placed in Jarrell’s ear the previous evening. Jarrell then turned the nine millimeter pistol on Shuler, shot twice and killed him. Jarrell drove directly to Chandler’s home and advised Chandler that he had killed Shuler. Jarrell then returned to Snow’s Lake accompanied by Chandler, carried Shuler’s body to the other side of the mountain bordering Snow’s Lake, and buried the body near an abandoned moonshine still. Jarrell asked for the $500, but Chandler did not pay him. At approximately the same time that Shu-ler was murdered, Chandler was also attempting to protect his operation from individuals who were stealing his marijuana crop. Chandler suspected that two individuals, Patrick Burrows and Jeffrey MeFry, were stealing his marijuana. Chandler warned several people that he would kill MeFry and Burrows if they continued to steal marijuana. Chandler later announced to one of his dealers that Burrows was dead and that MeFry would be next if McFry did not quit stealing Chandler’s marijuana. Neither Burrows nor McFry were seen after September 1990. The defense argued that while Chandler may have been involved in individual marijuana transactions, he was not involved in a conspiracy with the 16 other individuals as charged in the superseding indictment. Further, under no interpretation of the evidence was Chandler the head of a continuing criminal enterprise. The defense also introduced evidence that there was a history of animosity between Jarrell and Shuler that gave Jarrell an independent reason to kill Shuler. Donna Shu-ler, the half-sister of Chandler’s wife and Jarrell, was once married to Shuler. The couple lived for a time with Donna’s mother. During their marriage Shuler repeatedly abused his wife and his mother-in-law. Jar-rell and his sons frequently came to their defense and would argue and fight with Shu-ler. In 1989, during an argument between Shuler and Jarrell, Jarrell told Shuler that he was going to kill him, pointed a pistol at Shuler’s head, and pulled the trigger. Although the gun was loaded, it failed to fire. Defense counsel also attacked the putative gaps in the government’s case. Chandler’s counsel emphasized that a number of the government’s key witnesses had entered into plea agreements in which testimony was exchanged for a recommendation of a lesser sentence. On April 2, 1991, the jury found Chandler guilty on all nine counts. As provided under 21 U.S.C. § 848(i)(l)(A), the district court on the next day conducted a death penalty sentencing hearing before the same jury. The government resubmitted all of the evidence used at the guilt phase that was relevant to the death of Shuler or to the presence of aggravating or mitigating factors. The government and Chandler stipulated that Chandler had no prior convictions on any felony or drug charge and that state murder charges against Jarrell and Jarrell’s son in connection with the Shuler murder had been dismissed and that neither the United States nor Alabama would prosecute either one for murder. Chandler’s mother and wife testified for the defense. Following detailed instructions from the district court, a unanimous jury found that the government had established two aggravating factors: (1) Chandler intentionally caused the death of Shuler and (2) Chandler procured the murder by promising the payment of money. The jury unanimously recommended that Chandler be sentenced to death. On May 14, 1991, the district court sentenced Chandler to life imprisonment on Counts One and Two, two consecutive five year sentences on Counts Four and Five, and six years of imprisonment on Counts Six, Seven, Eight and Nine. Based on the jury recommendation, the district court sentenced Chandler to death, on Count Three as mandated by 21 U.S.C. § 848(0- Chandler moved for a new trial as to both phases of his trial. These motions assigned numerous errors to both the guilt and sentencing phases of the trial. Some arguments renewed previous attacks and others were made for the first time. The district court denied the motions, but stayed enforcement of the capital sentence pending appeal. Chandler filed two appeals to this court. The first challenged the capital sentence under Count Three. The second contested his conviction on Count Three and his convictions and sentences on the non-capital counts. • We consolidated the two appeals under 21 U.S.C. § 848(q)(l). II. THE STATUTORY SCHEME A. Overview Of Section 848 The Anti-Drug Abuse Act of 1988 establishes as a capital offense the intentional killing of a person in connection with the commission of a continuing criminal enterprise. The Act details procedures to be followed before a defendant may be sentenced to death. Initially, the government must serve notice “a reasonable time before trial” of its intent to seek the death penalty. 21 U.S.C. § 848(h)(1). If a defendant is found guilty of violating Section 848(e)(1)(A), a separate sentencing hearing must be conducted, generally before the same jury that determined guilt. 21 U.S.C. § 848(i)(l)(A). The purpose of the hearing is to permit consideration of any aggravating and mitigating factors relevant to whether the defendant should be sentenced to death. 21 U.S.C. § 848(j). The information presented at sentencing need not conform to the Federal Rules of Evidence, so long as the district court is convinced that its pi’obative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading to the jury. Id. The process by which a jury is to consider sentencing factors is specific. The government must prove beyond a reasonable doubt and to the unanimous satisfaction of the jury at least two of the aggravating factors expressly set forth in the statute. 21 U.S.C. § 848(j), (k). It must advise the defendant a reasonable time before trial of those aggravating factors it intends to prove. 21 U.S.C. § 848(h)(1). One of these must be from among the four listed in Section 848(n)(l). The other must be from among those listed in Section 848(n)(2)-(12). Absent a finding of these aggravating factors, a jury cannot impose the death penalty. 21 U.S.C. § 848(k). If a jury makes the required findings of aggravating factors, it then considers any mitigating factors established by the defendant. 21 U.S.C. § 848(k), (m). Mitigating factors need only be established by a preponderance of the evidence, and any juror persuaded of a mitigating factor may consider it in reaching a sentencing decision; unanimity as to what factors are mitigating is not required. 21 U.S.C. § 848(j), (k). A jury that finds the required aggravating factors must consider whether these factors so outweigh any mitigating factors as to justify a sentence of death. 21 U.S.C. § 848(k). Absent any mitigating factors, a jury must still unanimously find that the aggravating factors are themselves sufficient to justify a sentence of death. Id. Invidious factors, such as race or sex, cannot influence a jury’s recommendation of the death penalty. Each juror must sign a certificate attesting that neither the defendant’s nor the victim’s “race, color, religious beliefs, national origin, or sex” played any part in the deliberations. 21 U.S.C. § 848(o)(l). Although a jury cannot vote for the death penalty absent the required findings just detailed, a jury is never required to impose a death sentence even if it finds sufficient grounds to do so under the applicable law. Indeed, a court must specifically so instruct the jury. 21 U.S.C. § 848(k). Although the statute denominates a jury’s finding in favor of the death penalty a “recommendation,” it is determinative, for upon such a “recommendation” the trial court “shall sentence the defendant to death.” 21 U.S.C. § 848(i). Appellate review of a death sentence is expressly provided by the statute. 21 U.S.C. § 848(q)(l). Such appeal may be consolidated with a challenge to the judgment of conviction, and the case is to be given priority on the appellate docket. Id. B. Standard Of Review Section 848 contains two provisions that address our review of death sentences imposed under Section 848(e). Section 848(q)(2) states: On review of the sentence, the court of appeals shall consider the record, the evidence submitted during trial, the information submitted during the sentencing hearing, the procedures employed in the sentencing hearing, and the special findings returned under this section. Section 848(q)(3) provides: The court shall affirm the sentence if it determines that— (A) the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor; and (B) the information supports the special finding of the existence of every aggravating factor upon which the sentence was based, together with, or the failure to find, any mitigating factors as set forth or allowed in this section. There is nothing in these sections altering our ordinary standards of review. Instead, these sections serve to emphasize the serious nature of capital cases and the importance of careful review. III. DISCUSSION A. Challenges To The Death Sentence 1. Jury power to recommend a sentence other than death Section 848(k) provides that, if the jury finds certain aggravating factors, the jury must then weigh the aggravating factors against any mitigating factors to determine whether to recommend “that a sentence of death shall be imposed rather than a sentence of life imprisonment without possibility of release or some other lesser sentence.” At Chandler’s sentencing, the district court instructed the jury that, in the event that it did not recommend a sentence of death, it should not be concerned with the question of what sentence he might receive. The district court also stated that the judge alone would decide Chandler’s sentence if the jury did not recommend death. Chandler contends that the district court violated Section 848(k) as well as the Fifth and Eighth Amendments by withholding from the jury the authority to impose a sentence other than death. However, at a pre-sentencing hearing, Chandler’s counsel asserted that “I don’t think they [the jurors] make a recommendation of a sentence if they don’t recommend death.” XIV-40. The proposed jury instructions submitted by Chandler advised that, if the jury did not recommend a death sentence, the responsibility for imposition of a non-death sentence rested with the district court. Because Chandler both argued for and submitted jury instructions stating that the district court alone was responsible for sentencing Chandler if the jury did not recommend death, Chandler invited the alleged error and cannot now, on appeal, complain that the instruction was erroneous. Leverett v. Spears, 877 F.2d 921, 924 (11th Cir.1989). Had Chandler not invited the instruction, the district court properly construed Section 848(k). When the language of a statute is clear, the language controls any interpretation of the statute absent a legislative intent to the contrary. United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981); Harper v. Better Business Servs., Inc., 961 F.2d 1561, 1563 (11th Cir.1992). We must look to the language and design of the statute as a whole in interpreting the language at issue. McCarthy v. Bronson, — U.S. -, -, 111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991). The language of Section 848(k) is not perfectly clear, and the legislative history of the Anti-Drug Abuse Act of 1988 consists of only a few debates on the Senate floor. Nevertheless, Section 848(k) can be confidently interpreted when it is read in the context of the statute as a whole. Several provisions of Section 848 suggest that Chandler’s interpretation is flawed. Section 848(i) provides: Upon the recommendation that the sentence of death be imposed, the court shall sentence the defendant to death. Otherwise the court shall impose a sentence, other than death, authorized by law. The second sentence of this section instructs that the district court determines the sentence if the jury does not recommend death. Similarly, Section 848(p) provides: If a person is convicted for an offense under subsection (e) of this section and the court does not impose the penalty of death, the court may impose a sentence of life imprisonment without the possibility of parole. Thus, the statute grants the district court the discretion to sentence a defendant to life without parole if a death sentence is not recommended. These sections preclude an interpretation of Section 848(k) that gives the jury the authority to impose a non-death sentence. Correspondingly, the responsibility for- sentencing has historically resided with the trial court. In the absence of clear language in a statute to lodge the sentencing responsibility with the jury, we are reluctant to interpret the statute in a strained manner to reach that result. Hence, we find that Section 848 grants the district court the power to sentence the defendant where the jury does not recommend death. Chandler next insists that our interpretation of Section 848(k) violates the Fifth and Eighth Amendments. Chandler relies on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). In Beck, the Court held that a jury in a capital ease must be permitted to consider a verdict of guilty on a lesser included non-capital offense where the evidence would support such a verdict. The jury will thus not be put in a position of choosing between guilt on a capital offense and acquittal. Chandler argues that the jury at his sentencing was put in a similar position. However, Beck is not directly applicable in capital sentencing hearings. California v. Ramos, 463 U.S. 992, 1007-09, 103 S.Ct. 3446, 3457, 77 L.Ed.2d 1171 (1983). In Chandler’s case, prior to sentencing the jury found Chandler guilty of murder in connection with a continuing criminal enterprise. Therefore, the jury was not choosing between guilt of a capital crime and acquittal. It was choosing between a penalty of death and some other sentence yet to be determined by the trial judge. Chandler also invokes Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). In Hicks, the Court held that due process requires that a jury must be informed of all sentences that the statute allows it to impose when exercising sentencing power. Id. at 346, 100 S.Ct. at 2229. In Hicks, the jury was vested with the power to determine the defendant’s sentence, capital or otherwise. In this case, Hicks provides no guidance. The issue before us is whether Section 848 gives the jury the power to recommend a sentence other than death. Unless that question is answered in the affirmative, Hicks provides no guidance. The Court has ruled that there is no single correct way to structure a death sentencing procedure. Morgan v. Illinois, — U.S. -, -, 112 S.Ct. 2222, 2228, 119 L.Ed.2d 492 (1992); Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984). Indeed, there is also no constitutional requirement that juries be allowed to participate in capital sentencing. Id. at 459, 104 S.Ct. at 3161-62. Accordingly, there is nothing unconstitutional with the procedure Congress established in Section 848. The jury has the sole power to recommend a sentence of death. If the jury does not recommend a death sentence, the trial judge has the responsibility to impose a sentence other than death. Hicks is inapplicable to Chandler’s case because the jury, in this ease, was instructed on the full range of its sentencing power; that is, the power to recommend a death sentence. 2. Jury should have been informed of other sentences Chandler contends that even if the jury did not have the power to recommend a sentence other than death, under Section 848(k) and applicable precedent, the jury should have been informed of the possible sentences Chandler would face if the jury did not recommend death. We review jury instructions de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party. United States v. Myers, 972 F.2d 1566, 1572 (11th Cir.1992), cert. denied, — U.S. - — , 113 S.Ct. 1813, 123 L.Ed.2d 445 (1993). The instructions must be viewed as a whole in the context of the trial record. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); Peek v. Kemp, 784 F.2d 1479, 1492 n. 13 (11th Cir.1986), cert. denied, 479 U.S. 1047, 107 S.Ct. 912, 93 L.Ed.2d 862 (1987). Further, an error occurs only when there is a reasonable likelihood that the jury applied the instruction in an improper manner. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990); see Estelle v. McGuire, — U.S.-,-, 112 S.Ct. 475, 482 n. 4, 116 L.Ed.2d 385 (1991). Initially, Chandler asserts that Section 848(k) requires that the jury be informed that he would face some other sentence, including the possibility of a life sentence without parole, if the jury did not recommend the death penalty. Section 848(k) instructs that after weighing the aggravating and mitigating factors and determining that the aggravating factors sufficiently outweigh the mitigating factors, the jury may then exercise its option to recommend that a sentence of death shall be imposed rather than a sentence of life imprisonment without possibility of release or some other lesser sentence. At sentencing the district court instructed the jury: In deciding what recommendation to make, you are not to be concerned with the question of what sentence the defendant might receive in the event you determine not to recommend a death sentence. That is a matter for me to decide in the event you conclude that a sentence of death should not be recommended. RXV-85. The district court also instructed: If you do not make such a recommendation, the court is required by law to impose a sentence other than death, which sentence is to be determined by the court alone. RXV-87. Chandler’s argument, in effect, is that the district court’s instruction was inadequate because it did not inform the jury that the “sentence other than death” included the possibility of life without parole. We find that the district court’s instructions adequately informed the jury under Section 848(k). The statutory scheme created by Section 848 provides that the jury alone has the power to recommend a sentence of death. If the jury does not make such a recommendation, the district court sentences the defendant. Nothing in Section 848 requires the jury to be informed of what sentence the defendant might receive in the absence of death. The district court’s instructions were proper. Chandler also suggests that applicable precedent, mandating that a defendant be allowed to introduce evidence relating to mitigating factors, requires that the jury be informed of the possibility that Chandler would receive a life sentence without parole if death was not recommended. The Supreme Court has defined mitigating factors as “any aspect of a defendant’s character or record and any of the circumstances of the offense.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978); see Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1670-71, 90 L.Ed.2d 1 (1986). The range of possible sentences that Chandler might receive in the event the jury did not recommend death does not fall within this definition. Accordingly, the district court was not required to inform the jury of the possible sentences Chandler might face. 3. Return of mitigating findings Chandler urges us to rule that the district court should have required the jury to return written findings of mitigating factors it did or did not find to exist. At no time, however, did Chandler request that the jury be instructed to return written findings of mitigating factors or object to the lack of such an instruction. Chandler did submit proposed jury charges that instructed the jury that they should find two mitigating factors: (1) that Chandler lacked a criminal record, and (2) that an equally culpable defendant would not receive the death penalty. These requested instructions did not adequately bring to the district court’s attention the issue now presented on appeal. Thus, we review for plain error. Fed.R.Crim.P. 52(b). The finding of plain error is a three step process: (1) there must be an error, (2) the error must be plain, i.e. clear or obvious, and (3) the error must affect substantial rights. United States v. Olano, — U.S.-,--, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). In most cases, the third prong of this test is met only when the defendant demonstrates that the error affected the outcome of the proceedings before the district court. Id. at --, 113 S.Ct. at 1778. If, however, the error affects the basic protections of a criminal trial without which a criminal trial cannot reliably serve its function, an effect on the outcome will be presumed. Id.; see Arizona v. Fulminante, 499 U.S. 279,-, 111 S.Ct. 1246, 1264-65, 113 L.Ed.2d 302 (1991) (distinguishing between trial type errors and errors which undermine the entire trial). If the defendant satisfies all three prongs, then we have the discretionary power to correct an error which seriously affects the fairness, integrity or public reputation of judicial proceedings. Olano, — U.S. at-, 113 S.Ct. at 1778-79. We first determine whether an error occurred. We disagree with Chandler’s interpretation of Section 848 that the jury is required to return written findings of mitigating factors that the jury has either found to exist or found not to exist. Instead we interpret Section 848 as providing the jury with the option of returning written findings of mitigating factors. Because the district court’s instructions and verdict form foreclosed the jury’s exercise of this option, the district court committed error. Section 848(k) is entitled “Return of Findings.” It provides that the jury “shall return special findings identifying any aggravating factors set forth in subsection (n) of this section, found to exist.” The section also states: A finding with respect to a mitigating factor may be made by one or more of the members of the jury, and any member of the jury who finds' the existence of a mitigating factor may consider such a factor established for purposes of this subsection, regardless of the number of jurors who concur that the factor has been established. The statute mentions special findings only in relation to aggravating factors. Also, the permissive language concerning the return of written mitigating factors, “may be made,” contrasts with the mandatory language.concerning the return of written aggravating findings, “shall.” The jury .is required to return aggravating findings and is permitted to return mitigating findings. Therefore, we find that Section 848 requires that the jury be instructed that it has the option to return written findings of mitigating factors if it so chooses, but that it does not require the return of such findings. Section 848(q) does not require a different result. This section states that on review of a death sentence, “the court of appeals shall consider ... the special findings .returned under this section.” 21 U.S.C. § 848(q)(2). The section also instructs, in pertinent part, that we shall affirm a death sentence if the information supports the special finding of the existence of every aggravating factor upon which the sentence was based, together with, or the failure to .find, any mitigating factors as set forth or allowed in this section. 21 U.S.C. § 848(q)(3)(B). Neither of these subsections mandate the written findings of mitigating factors. They require only that we review any findings which are returned to ensure that the information presented during sentencing supports those findings. We hold that Section 848(k) requires that the jury be given the option to return written findings of mitigating factors. Section 848(q)(3) requires that if the jury exercises its option, we must review those findings. This interpretation comports with the law as it stood at the time Congress drafted the Anti-Drug Abuse Act of 1988. The finding of mitigating circumstances is individualized; a juror is free to find a mitigating factor even if no other juror agrees with that finding. See Mills v. Maryland, 486 U.S. 367, 373-74, 108 S.Ct. 1860, 1865, 100 L.Ed.2d 384 (1988). Congress may well have determined that forcing jurors to write down mitigating factors would discourage a lone juror from finding mitigating circumstances that the rest of the jury .had rejected or disparaged. More significantly, by not requiring a juror to inform his or her fellow jurors of the mitigating factors that will be used in that juror’s weighing calculus, the individualized determination of both mitigating factors and the appropriateness of a death sentence is protected. The district court in this case did not inform the jury that it had the option to return written findings of mitigating factors and the verdict form did not contain space for the optional findings. This was error. Moreover, the error was plain. The statute, as we interpret it in this opinion, requires that the jury be given an option to return mitigating findings. Accordingly, we must determine whether the error affected Chandler’s substantial rights. We note initially that this error does not undermine the basic protections of a criminal trial without which a criminal trial cannot reliably serve its function, but instead is a trial type error. Chandler must therefore demonstrate that the error affected the outcome of the proceedings before the district court. Chandler argues that he was prejudiced because an appellate court on review cannot determine whether the jury found two mitigating factors which Chandler contends were beyond dispute: (1) that Chandler had no criminal record; and (2) that Jarrell was an equally culpable person who would not receive the death penalty. We are persuaded that the lack of written mitigating findings did not affect the outcome of Chandler’s sentencing hearing. The government and Chandler stipulated that Chandler had no prior conviction on any felony or drug charge and that Jarrell would not receive the death penalty. These stipulations were presented at sentencing to the jury, and the jury was informed that they were stipulations. Moreover, the jury was properly instructed on how to find mitigating factors and the role of mitigating factors in their decision making process. The jury is presumed to follow the instructions they are given. See Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987). Thus, Chandler has not demonstrated that the lack of written mitigating findings affected the outcome of his case. In conclusion, the district court erred by not allowing the jury the option to return written findings of mitigating factors. However, this error did not affect the outcome of the sentencing hearing and was, therefore, not plain error. 4. Jury unanimity at sentencing Section 848(k) provides that a recommendation of death may be returned only by the jury’s unanimous vote. Section 848(0 provides: Upon the recommendation that the sentence of death be imposed, the court shall sentence the defendant to death. Otherwise the court shall impose a sentence, other than death, authorized by law. When read in conjunction, these subsections provide that in the event the jury cannot unanimously recommend a death sentence, the district court must sentence the defendant to some non-death sentence. At sentencing, the district court instructed the jury that:, [i]n order to bring back a verdict recommending the punishment of death, all twelve of you must vote in favor of recommending the death penalty. In other words, a verdict recommending a sentence of death must be unanimous. RXV-87. The jury was also charged: If you do not make such a recommendation, the court is required by law to impose a sentence other than death, which sentence is to be determined by the court alone. RXV-87. The court admonished the jury that it was never required to recommend a death sentence. The district court provided the jury with a verdict form to complete during deliberations. The verdict form contained blanks for the jury to check after it made findings. In the section containing the jury’s recommendation for or against a death sentence, the form provided: We the jury unanimously vote to recommend, and do unanimously recommend that _a sentence of death he imposed _a sentence of death not be imposed upon defendant David Ronald Chandler. RII-221-3. Chandler argues that Section 848 along with the constitutional requirement that the jury not be misinformed or coerced during a capital sentencing require that the jury be instructed that the failure to reach unanimity would result in Chandler receiving some non-death sentence as determined by the court. Several courts have held that a trial court must instruct the jury on the consequences of a lack of unanimity at the sentencing stage (a “hung” jury). The Delaware Supreme Court held that, because Delaware’s capital statute provides that the failure to reach unanimity results in a life sentence, the jury must clearly and explicitly be instructed that the jury need not be unanimous for a life sentence to be imposed. Whalen v. State, 492 A.2d 552, 562 (Del.1985). The New Jersey Supreme Court, in construing a similar capital statute, held that the statute and the unique nature of a death ease require that the trial court inform the jury of the consequences of a non-unanimous decision. State v. Ramseur, 106 N.J. 123, 524 A.2d 188, 283-84 (1987). Louisiana has reached the same conclusion. State v. Williams, 392 So.2d 619, 633-34 (La.1980). Chandler points out that in other Section 848(e) prosecutions, the district courts have instructed the jury on the consequences of a hung jury and provided a verdict form that allowed the jury to state that they were unable to reach a unanimous verdict. Other courts, however, have held that a defendant is not entitled to an instruction informing the jury of the consequences of a lack of unanimity. The Fourth Circuit held that even though the Virginia capital statute requires that the defendant receive a life sentence if the jury is unable to reach unanimity, the defendant is not entitled to a hung jury instruction. Evans v. Thompson, 881 F.2d 117, 123-124 (4th Cir.1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 764 (1990). The Fourth Circuit also held that, although the South Carolina capital statute requires an instruction on the consequences of a hung jury, the lack of such an instruction has no affect on the sentencing decision. Gaskins v. McKellar, 916 F.2d 941, 955 (4th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2277, 114 L.Ed.2d 728 (1991). North Carolina, Florida and Alabama do not require the jury to be informed of the effect of a failure to reach a unanimous verdict. Barfield v. Harris, 540 F.Supp. 451, 472 (E.D.N.C.1982). See also Aldridge v. State, 351 So.2d 942, 944 (Fla.1977) (per curiam); Coulter v. State, 438 So.2d 336, 346 (Ala.App.1982) (collecting cases). We find the reasoning of the second set of authorities persuasive and hold that the district court is not required to instruct the jury on the consequence of the jury’s inability to reach a unanimous verdict. There is no requirement that instructions to the jury duplicate the statutory language. Section 848(i) is an instruction to the court and not for the jury. Our holding is further supported by the general interest the criminal justice system has in unanimous verdicts. Asking the jury to return a unanimous verdict forces jurors to examine their views on the case and engage in discussions and deliberations as they attempt to resolve their differences. We reject the suggestion that the instructions or verdict form in some way coerced the jury into a recommendation of death. Similar instructions are given during the guilt stage of criminal proceedings. That an Allen type charge was given in the present case does not create any coercion. Although the instruction stated that jurors should “not hesitate to re-examine your own opinion, and to change your mind if you become convinced that you are wrong,” it also admonished, “do not give up you honest beliefs ... solely because the others think differently or merely to get the case over with.” RXV-87. When this instruction is coupled with the court’s statement that Chandler would receive the death penalty only if all jurors unanimously agreed to recommend death, we conclude the Allen charge was not coercive. See Lowenfield v. Phelps, 484 U.S. 231, 237-238, 108 S.Ct. 546, 550-51, 98 L.Ed.2d 568 (1988). Finally we note that unlike many of the coercion cases discussed here and in Chandler’s brief, there was no indication in this case that the jury was anything but unanimous. After a two week trial, the jury deliberated for just under three hours before returning a recommendation of death. Moreover, each juror was required to sign the verdict form and each juror, when polled, affirmed the decision. To conclude, we hold that in the sentencing phase of a Section 848(e) prosecution, the district court is not required to instruct the jury on the consequences of an inability to reach a unanimous verdict. Chandler also failed to demonstrate that the jury was in any way coerced in this case. 5. Propriety of the evidence at sentencing Section 848 establishes a procedure for the introduction of evidence at the sentencing phase. Before trial, the government must provide the defendant with a list setting forth each aggravating factor that the government will attempt to prove as a basis for the imposition of the death penalty. 21 U.S.C. § 848(h)(1)(B). At the sentencing hearing, the government may present information relevant to any of the aggravating factors set forth in the Section 848(h)(1)(B) list as long as the probative value of the information is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. 21 U.S.C. § 848(j). Prior to trial, the government provided a list to Chandler of the three aggravating factors on which it would rely in seeking the death penalty. The three factors were: (1) Chandler did intentionally kill or intentionally engage in conduct intending the killing of Marlin Shuler, Section 848(n)(l); (2) Chandler procured the murder of Shuler by promise of payment of money, (n)(6); and (3) Chandler committed the murder after substantial planning and premeditation, (n)(8). At the guilt phase, the government introduced evidence that Chandler had made threats against McFry and Burrows because he thought they were stealing his marijuana and that the two had not been seen since the threats were made. Prior to the sentencing hearing, Chandler submitted proposed jury instructions. Proposed Instruction 14 stated that it would be inappropriate for the jury to speculate on what may have happened to McFry and Burrows or what connection Chandler may have had with them. Proposed Instruction 15 stated that the jury may consider evidence relating only to Marlin Shuler and to Count Three of the indictment. Prior to the hearing, the district court, the prosecution, and Chandler’s attorney discussed these proposed charges. The district court indicated that it thought that the charges unduly limited the evidence that the jury could consider because most of the evidence presented at the guilt phase was relevant to either Chandler’s intent or to the planning or scheming of Shuler’s murder. Then, in response to a question from the prosecution, the court opined that any evidence concerning the disappearance of either McFry or Burrows was relevant to planning, if nothing else. Later, the court advised that although he would not give Chandler’s proposed instructions, he thought they were fair arguments for Chandler’s counsel to make in closing. At the hearing, the district court received, upon the government’s submission, all of the testimony, evidence, and exhibits presented at the guilt phase that were relevant to the murder of Shuler or to the presence of aggravating or mitigating factors. Chandler’s counsel, in his closing argument to the jury, requested that it should not speculate about any connection between Chandler and the disappearances of McFry and Burrows. The prosecution replied in rebuttal that the threats made against McFry and Burrows demonstrated planning in the protection of Chandler’s marijuana operation. Following closing arguments, the court instructed the jury that it could consider any evidence relevant to the Shuler murder and to the existence of aggravating and mitigating factors. The court identified the specific factors that the government was attempting to prove and admonished the jury to consider no other aggravating factor. On appeal, Chandler argues that the introduction of all the evidence from the guilt stage of the proceedings coupled with the argument made in closing by the government relating to McFry and Burrows constituted an attempt by the government to use the apparent murders of McFry and Burrows as aggravating factors. Since these putative murders were not included in the list provided under Section 848(h)(1)(B), Chandler insists that the sentence of death should be vacated. The evidence relating to McFry and Burrows was properly admitted during sentencing because it related to the aggravating factors the prosecution was responsible for proving. Section 848(j) allows the presentation of any information relevant to aggravating circumstances provided the probative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. Although the Federal Rules of Evidence do not govern the admissibility of evidence during a Section 848(e) sentencing hearing it is helpful to refer to the definition of relevant evidence from the Federal Rules, to wit: evidence having any tendency to make the existence of a material fact more probable or less probable than it would be without the evidence. Fed. R.Evid. 401. The evidence concerning McFry and Burrows has a tendency to prove Chandler’s intent to kill Shuler and his substantial planning in the murder. The fact that Chandler threatened to eliminate two individuals who he believed were stealing his marijuana tends to prove that Chandler was willing to harm someone who threatened his marijuana enterprise. Since Shuler threatened Chandler’s operation by informing on Donna Shu-ler, Chandler’s prior threats and the disappearances have a tendency to prove that Chandler would also respond to Shuler’s actions to protect his operation. This has a tendency to prove that Chandler intended to harm Shuler. The evidence also demonstrates that Chandler planned the protection of his marijuana operation. Public statements indicating that Burrows is dead and McFry will be next, reveal Chandler’s conscious actions over time to protect his operation. That Chandler planned the protection of his operation against those who threatened it has some tendency to prove that Chandler would plan a reprisal against Shuler for informing. We conclude that the probative value of this evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. The evidence concerning McFry and Burrows was properly admitted at the guilt phase of trial, so the jury had previously considered the evidence. The district court instructed the jury that it could only weigh the evidence as it related to the three aggravating factors and that only those three factors could serve as the basis for imposition of a death sentence. Therefore, the evidence was not erroneously admitted during the sentencing hearing. 6. Instruction on the weighing process Following the jury’s finding of aggravating and mitigating factors, Section 848(k) provides that the jury “shall then consider whether the aggravating factors found to exist sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of mitigating factors, whether the aggravating factors are themselves sufficient to justify a sentence of death.” Chandler assigns error to the district court’s failure to instruct the jury that it was required to find that the aggravating circumstances sufficiently outweighed any mitigating factors either beyond a reasonable doubt or by clear and convincing evidence. Chandler contends that because the possible punishment under Section 848 is the death penalty, the weighing process must be interpreted to require a heightened burden of proof. The clear language of a statute controls any interpretation of the statute absent a clearly expressed legislative intent to the contrary. In this case, the language of Section 848(k) is clear and the meager legislative history is not to the contrary. The statute states that the jury must consider whether the aggravating factors sufficiently outweigh the mitigating factors to justify a sentence of death or if no mitigating factors exist whether the aggravating factors are themselves sufficient to justify a sentence of death. There is no language suggesting that the weighing process is governed by a burden of proof. Congress obviously knew how to assign burdens of proof to jury findings; it did so in Section 848(j) for findings of aggravating factors (beyond a reasonable doubt) and mitigating factors (by a preponderance of the evidence). If Congress had intended to govern the jury’s weighing process with a burden of proof, it could have done so. It did not, and we will not construe the statute to require one. That the jury need only be instructed that the aggravating factors sufficiently outweigh the mitigating factors is entirely appropriate. A capital sentencing scheme is constitutional even if it does not require that a specific burden of proof govern the jury’s weighing process. Ford v. Strickland, 696 F.2d 804, 817-818 (11th Cir.) (en banc), cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1988). The Supreme Court has also observed, “we have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.” Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S.Ct. 2320, 2330, 101 L.Ed.2d 155 (1988) (plurality); see Zant v. Stephens, 462 U.S. 862, 875 n. 13, 103 S.Ct. 2733, 2742 n. 13, 77 L.Ed.2d 235 (1983). Congress created a constitutional capital sentencing scheme by requiring the jury to find that the aggravating factors sufficiently outweigh the mitigating factors before a death sentence could be recommended. Alternatively, Chandler submits that even if the statute does not require a burden of proof in the weighing process, the district court erred in its instructions to the jury. The district court instructed the jury both at the beginning of the sentencing hearing, the preliminary instructions, and again at the conclusion, the supplemental jury instructions. On each occasion the district court provided the jury with a copy of the instructions that the district court requested the jury follow as the instructions were read aloud. Both the preliminary and the supplemental instructions discussed the weighing process five times. Three of those times the district court instructed that the aggravating factors must sufficiently outweigh the mitigating factors. Twice the district court instructed that the aggravating factors must outweigh the mitigating factors. The district court also gave the jury a verdict form. The form was to be signed by each juror and confirmed that the jury had found that the aggravating factors sufficiently outweighed the mitigating factors. We review jury instructions under the standard discussed above. In context, the instructions sufficiently charged the jury on the weighing process. The instructions communicated to the jury that it must find that the aggravating factors when balanced against the mitigating factors justified a sentence of death. The fact that the district court omitted the word “sufficiently” two times does not render the instructions inadequate or erroneous. Moreover, the jury form that each juror signed stated that “the aggravating factors unanimously found by us to exist sufficiently outweigh any mitigating factor or factors found to exist to justify a sentence of death.” RII-221-3 (emphasis added). 7. The weighing process A death penalty statute is constitutional only if the statue genuinely narrows the class of persons eligible for the death penalty and reasonably justifies the imposition of a more severe sentence on the defendant compared to others found guilty of murder. Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988) (citing Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983)). Chandler argues that due to the breadth of 848(e), the finding of guilt under Section 848(e) does not satisfy the constitutional requirement that a capital statute must genuinely narrow the class of defendants eligible for the death penalty. Instead, Chandler contends that the narrowing function occurs during the sentencing phase when the jury finds aggravating factors. Chandler further contends that because one of the aggravating factors duplicates a jury finding at the guilt phase, the jury’s weighing process is skewed in favor of imposing the death penalty. He submits that the jury’s deliberations are skewed because the jury will inevitably consider the number of aggravating factors during its weighing process. Section 848 establishes a two-step scheme that guides the jury’s deliberations. At the guilt phase, the jury determines whether the defendant intentionally killed or commanded or procured the intentional killing of an individual while engaging in or working in furtherance of a continuing criminal enterprise. Before the death penalty can be recommended, the jury at sentencing must first unanimously find that the government has proved beyond a reasonable doubt the existence of aggravating factor (n)(l) and at least one other aggravating factor from the list in (n)(2) through (n)(12). Aggravating factor (n)(l) mirrors the intent element found at the guilt phase. The jury then considers whether the aggravating factors sufficiently outweigh any mitigating factors to justify a sentence of death. If no mitigating factors are found, the jury considers whether the aggravating factors are sufficient to justify a sentence of death. As long as a death penalty statute narrows the class of persons subject to the death penalty at the guilt phase of trial, the fact that the jury may find an aggravating factor that duplicates a finding made at the guilt phase does not render the capital statute unconstitutional. Lowenfield, 484 U.S. at 246, 108 S.Ct. at 555. The statutory scheme of Section 848 satisfies the requirements of Lowenfield. Initially, the statute requires the jury to find that the defendant intentionally committed homicide in connection with large scale drug trafficking. The statute does not embrace anyone who committed murder, but only those who did so in connection with a continuing criminal enterprise. Thus, Section 848(e) sufficiently narrows the class of death eligible defendants at the guilt phase. Moreover, Section 848 requires that the jury find at least one other aggravating factor from the list of (n)(2)~ (n)(12) before the death penalty can be imposed. The statute also requires the jury to consider any mitigating circumstances and allows the jury to weigh the aggravating and mitigating factors. This is all that Lowenfield requires. Nevertheless, Chandler suggests that the present ease is distinguishable from Lowenfield because Section 848(e) requires the jury to weigh the factors while the statute in Lowenfield did not. Chandler posits that the jury will be influenced in its weighing process by the number of aggravating factors. Although the Supreme Court has observed that the difference between a weighing statute and a non-weighing statute is “not one of ‘semantics’ ”, Stringer v. Black, —- U.S.-,-, 112 S.Ct. 1130, 1137, 117 L.Ed.2d 367 (1992), we -have previously rejected the kind of argument Chandler now makes. Johnson v. Singletary, 991 F.2d 663, 669 (11th Cir.1993) (per curiam). Further, any such distinction was erased by the district court’s instructions. The court’s instructions made clear that the weighing process was not a mechanical one and that different factors could be given different weight. Thus, the jury was adequately instructed that it should not reach a decision based on the number of aggravating or mitigating factors. Accordingly, the scheme of Section 848(e) was not improperly skewed towards a sentence of death. 8. Prosecutor’s closing arguments Chandler argues that the prosecutor made four improper remarks during closing argument at the sentencing hearing. We apply a two-step test to determine if prosecu-torial misconduct occurred: (1) the remarks must be improper and (2) the remarks must prejudicially affect the substantial rights of the defendant. United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir.1991). We find that the statements were proper and do not reach the second prong of the test. a. Improper vouching Following Shuler’s murder, the police arrested Jarrell and his son, Billy Joe Jarrell. After Jarrell admitted to having killed Shu-ler, Billy Joe was released and the murder charges against him were dismissed. Jarrell entered into a plea agreement and testified for the government against Chandler. Both Billy Joe and Jarrell testified at Chandler’s trial. Billy Joe denied involvement in Shu-ler’s murder. At sentencing the parties stipulated that the murder charges against Jar-rell and Billy Joe Jarrell had been or would be dismissed. Defense counsel then argued to the jury that the Jarrells had an independent motive to kill Shuler; that is, Shuler’s abuse of Donna Shuler, Jarrell’s half-sister. Chandler contends that the prosecutor improperly vouched for the credibility of Billy Joe by alluding to evidence not before the jury. Chandler’s counsel argued that the Jarrells were culpable for Shuler’s death: Well here’s one thing that is undisputed. There was Jarrell’s family’s malice toward Marlin Shuler. How is that demonstrated. No question about the fights that both sons, Charles Ray, Jr., Billy Joe had with Shuler. Why. Because of, number one, his abuse of Donna Shuler, Charles Ray’s half sister, abuse of her, his abuse of the family generally and his abuse of Donna’s mother, Mrs. Johnson, for whom he had an abhorrious name. RXV-60. Counsel went on to argue, by alluding to the Jarrells, that a mitigating factor in this case was that another defendant or defendants equally culpable in the crime will not be punished by death. You can go further than that, not be punished at all, will not even be tried under an accusation of the murder of Marlin Shuler. RXV-61. In rebuttal the government argued that Charles Ray Jarrell was not as equally culpable as Chandler and then stated: Billy Joe Jarrell, there’s a stipulation about his case being dismissed. That is absolutely correct. His case was dismissed for lack of evidence, for lack of evidence. And if you can find, ladies and gentlemen, from the evidence that you’ve heard in this trial that Billy Joe Jarrell is guilty of complicity in that murder whatsoever and can convince someone of that, me or Mr. Davis, then I’m sure that ease will be brought up again. RXV-73. Chandler objected to this argument. A prosecutor’s remarks are improper if they attempt to bolster the credibility of a witness based on the government’s reputation or by alluding to evidence not formally before the jury. Eyster, 948 F.2d at 1206. Chandler argues that there was no evidence before the jury that the case against Billy Joe was dismissed for lack of evidence and, thus, the government’s argument to that effect was improper. We disagree. Both parties stipulated that the charges against Billy Joe had been dismissed. A firearms expert testified at Chandler’s tri