Full opinion text
KING, Circuit Judge: Defendant-Appellant Orlando Cordia Hall challenges his conviction and sentence for kidnapping resulting in death, conspiring to kidnap, traveling in interstate commerce to promote possession of marijuana with intent to distribute, and using and carrying a firearm during a crime of violence. For the reasons set forth below, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Orlando Cordia Hall, along with Bruce Webster and Marvin Holloway, ran a marijuana trafficking enterprise in Pine Bluff, Arkansas. They purchased marijuana in varying amounts in the Dallas/Fort Worth area with the assistance of Steven Beckley, who lived in Irving, Texas. The marijuana was transported, typically by Beckley, to Arkansas and stored in Holloway’s house. On September 21, 1994, Holloway drove Hall from Pine Bluff to the airport in Little Rock, Arkansas, and Hall took a flight to Dallas, Texas to engage in a drug transaction. Beckley and Hall’s brother, Demetrius Hall (D. Hall), picked Hall up at the airport. Later that day, Hall and Beckley met two local drug dealers, Stanfield Vitalis and Neil Rene (N. Rene), at a car wash and gave them $4700 for the purchase of marijuana. Later that day, Beckley and D. Hall returned to the car wash to pick up the marijuana, but Vitalis and N. Rene never appeared. Later, when Hall got in touch with Vitalis and N. Rene by telephone, they claimed that they had been robbed of the $4700. Using the telephone number that Beckley had used to contact Vitalis and N. Rene, Hall procured an address at the Polo Run Apartments in Arlington, Texas from a friend who worked for the telephone company. Hall, D. Hall, and Beckley began conducting surveillance at the address and saw Vitalis and N. Rene exit an apartment and approach the same car that they had driven to the car wash, which they claimed was stolen from them along with Hall’s $4700. Hall therefore deduced that Vitalis and N. Rene had lied to him about being robbed. On September 24, 1994, Hall contacted Holloway and had him drive Webster to the Little Rock Airport. From there, Webster flew to Dallas. That evening, Hall, D. Hall, Beckley, and Webster returned to the Polo Run Apartments in a Cadillac Eldorado owned by Cassandra Ross, Hall’s sister. Hall and Webster were each armed with handguns, D. Hall carried a small souvenir baseball bat, and Beckley had duct tape and a jug of gasoline. The four men approached the apartment that they had previously seen Vitalis and N. Rene leave. Webster and D. Hall went to the front door of the apartment and knocked. The occupant of the apartment, Lisa Rene, N. Rene’s sixteen-year-old sister, refused to let them in and called her sister and 911. After Webster unsuccessfully attempted to kick in the door, he and D. Hall went around to a sliding glass door on the patio and saw that Lisa Rene was on the telephone. D. Hall shattered the glass door with his baseball bat, Webster entered the apartment, tackled Lisa Rene, and dragged her to the car. Hall and Beckley had returned to the car when they heard the sound of breaking glass. Webster forced Lisa Rene onto the floorboard of the ear, and the group drove to Ross’s apartment in Irving, Texas. Once there, they exited the Cadillac and forced Lisa Rene into the backseat of Beckley’s car. Hall got in the backseat as well. Beckley got in the driver’s seat, and Webster got in the front passenger seat. The group then drove off again. During the drive, Hall raped Lisa Rene and forced her to perform oral sex on him. The group later returned to Ross’s apartment. From there, Beckley, D. Hall, and Webster drove Lisa Rene to Pine Bluff. Hall remained in Irving and flew back to Arkansas the next day. Once Beckley, D. Hall, and Webster reached Pine Bluff, they obtained money from Holloway to get a motel room. In the motel room, they tied Lisa Rene to a chair and raped her repeatedly. Hall and Holloway arrived at the motel room on Sunday morning, September 25, 1994. They went into the bathroom with Lisa Rene for approximately fifteen to twenty minutes. When Hall and Holloway came out of the bathroom, Hall told Beckley, “She know too much.” Hall, Holloway, and Webster then left the motel. Later that afternoon, Hall and Webster went to Byrd Lake Park and dug a grave. That same evening, Hall, Webster, and Beck-ley took Lisa Rene to Byrd Lake Park, but could not find the grave site in the dark. They then returned to the motel room. In the early morning of Monday, September 26, 1994, Beckley and D. Hall moved Lisa Rene to another motel because they believed that the security guard at the first motel was growing suspicious. Later the same morning, Webster, Hall, and Beckley again drove Lisa Rene to Byrd Lake Park. Lisa Rene’s eyes were covered by a mask. Hall and Webster led the way to the grave site, with Beckley guiding Lisa Rene by the shoulders. At the grave site, Hall turned Lisa Rene’s back toward the grave and placed a sheet over her head. He then hit her in the head with a shovel. Lisa Rene screamed and started running. Beck-ley grabbed her, and they both fell down. Beckley then hit Lisa Rene in the head twice with the shovel and handed it to Hall. Webster and Hall then began taking turns hitting her with the shovel. Webster then gagged Lisa Rene and dragged her into the grave. He covered her with gasoline and shoveled dirt back into the grave. Hall, Beckley, and Webster then returned to the motel and picked up D. Hall. On September 29, 1994, an arrest warrant issued out of the City of Arlington for Hall, D. Hall, and Beckley for Lisa Rene’s kidnapping. D. Hall, Beckley, and Webster were subsequently arrested. On September 30, 1994, Hall surrendered to Pine Bluff authorities in the presence of his attorney. On the advice of counsel, he did not give a statement at the time of his arrest, but indicated that he would talk with law enforcement agents after he was transported to Texas. On October 5, 1994, following his transfer to the Arlington County jail, Hall gave a written statement to FBI and Arlington County officials in which he substantially implicated himself in the kidnapping and murder. On October 26, 1994, the United States District Court for the Northern District of Texas issued a criminal complaint charging Hall, D. Hall, Webster, and Beckley with kidnapping in violation of 18 U.S.C. § 1201(a)(1). On November 4, 1994, a six-count superseding indictment was returned, charging Hall, D. Hall, Webster, Beckley, and Holloway with kidnapping in which a death occurred in violation of 18 U.S.C. § 1201(a)(1) (count 1), conspiracy to commit kidnapping in violation of 18 U.S.C. § 1201(e) (count 2), traveling in interstate commerce with intent to promote the possession of marijuana with intent to distribute in violation of 18 U.S.C. § 1952 (count 3), using a telephone to promote the unlawful activity of extortion in violation of 18 U.S.C. § 1952 (count 4), traveling in interstate commerce with intent to promote extortion in violation of 18 U.S.C. § 1952 (count 5), and using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) (count 6). On February 23, 1995, the government filed its notice of intent to seek the death penalty against Hall pursuant to the Federal Death Penalty Act of 1994 (FDPA), 18 U.S.C. §§ 3591-3598. On April 6, 1995, the district court granted Hall’s motion to sever, his trial from that of his codefendants, and trial commenced on October 2,1995. The jury returned a verdict of guilty as to counts 1, 2, 3, and 6. After the penalty phase of the trial, the jury returned a recommendation that a sentence of death be imposed. The district court sentenced Hall to death on count 1, life imprisonment on count 2, sixty months imprisonment on count 3 to run concurrently with the life sentence imposed on count 2, and sixty months imprisonment on count 6 to run consecutively to the sentences imposed on counts 2 and 3. Hall filed a timely notice of appeal. II. DISCUSSION Hall appeals his judgment of conviction and sentence on the following grounds: 1. The district court’s failure to allow Hall to allocute before the jury violated his right to due process, violated Rule 32 of the Federal Rules of Civil Procedure, and was an abuse of discretion under the evidentiary standards governing the penalty phase of a capital trial under the FDPA. 2. The district court violated Hall’s Fifth and Eighth Amendment rights by conditioning the admission of psychiatric testimony in mitigation of punishment upon Hall’s submission to a government psychiatric examination prior to conviction without restricting the government’s access to the results of the examination until after the guilt phase of trial. 3. The district court abused its discretion by admitting certain materials and testimony into evidence because they were unfairly prejudicial. 4. The admission of evidence regarding unadjudicated offenses during the penalty phase and a lack of a jury instruction requiring the jury to apply some burden of proof to this evidence rendered the death sentence unreliable. 5. The admission of nontestimonial victim impact statements during the penalty phase violated Hall’s Sixth Amendment right of confrontation, due process, and the FDPA’s evidentiary standards. 6. The district court’s rejection of defense challenges for cause to impaired and biased venirepersons denied Hall due process, an impartial jury, and his statutory right to free exercise of peremptory challenges. 7. The jury’s failure to consider the circumstances surrounding Hall’s upbringing as a mitigating factor was clearly erroneous and requires vacation of his death sentence. 8. Several of the aggravating factors submitted to the jury were unconstitutionally vague, overbroad, and duplicative. 9. The district court’s denial of Hall’s motions for continuance denied Hall his rights to due process and effective assistance of counsel under the Fifth and Sixth Amendments. 10. The district court erred in denying Hall’s request to poll the jury regarding a news report and debate that aired during penalty-phase deliberations. 11. The district court erred in denying Hall’s motion to suppress his dral and written statements as violative of his Fifth and Sixth Amendment rights as well as applicable federal statutes and rules. We address each of these issues in turn. A. Allocution Hall first contends that the district court’s denial of his request to make an unsworn statement of remorse to the jury during the penalty phase of his trial constitutes reversible error. In this regard, Hall advances a number of arguments. First, he contends that Rule 32(c)(3)(C) of the Federal Rules of Criminal Procedure afforded him a right to allocute before the jury. Second, he claims that, even if Rule 32(c)(3)(C) does not specifically create a right to allocute before the jury, such a right was recognized at common law, and the FDPA does not clearly abrogate this right. Third, he contends that he possesses a constitutional right to allocute. Fourth, he claims that, even if no constitutional right to allocute exists per se, the district court’s refusal to allow him to allo-eute in this case nonetheless violated his due process-based right to procedural parity because the district court unfairly allowed the government to present victim impact statements that were not subject to cross-examination. Fifth, he argues that the district court’s refusal to allow him to make an un-sworn statement of remorse before the jury constituted an abuse of discretion under the FDPA’s evidentiary standards. We address each of these arguments in turn. 1. Statutory Right of Allocution Hall contends that Rule 32(c)(3)(C) of the Federal Rules of Criminal Procedure afforded him the right to make an unsworn statement of remorse before the jury. Rule 32(c)(3)(C) provides that, “[bjefore imposing sentence, the court must ... address the defendant personally and determine whether the defendant wishes to make a statement and to present any information in mitigation of the sentence.” Fed.R.Crim. P. 32(c)(3)(C). In support of his contention that Rule 32(e)(3)(C) creates a right to make an un-sworn statement before the jury in capital cases, Hall relies upon the following language from 18 U.S.C. § 3593(c), which establishes the procedures for sentencing hearings in capital cases: Notwithstanding rule 32(e) of the Federal Rules of Criminal Procedure, when a defendant is found guilty or pleads guilty to an offense under section 3591, no presen-tenee report shall be prepared. At the sentencing hearing, information may be presented as to any matter relevant to the sentence_ 18 U.S.C. § 3593(c). Hall argues that, because the statute expressly states that the portion of Rule 32 requiring the preparation of a presentence report is inapplicable in capital cases and makes no similar reference to any other portion of Rule 32, the doctrine of expressio unius exclusio alterius indicates that Congress did not intend for the FDPA to displace other provisions of Rule 32, including the right to allocute created by subsection (c)(3)(C). We need not decide whether § 3593 was intended to displace Rule 32(c)(3)(C) because we conclude that, regardless of whether it was required to do so, the district court complied with the plain language of Rule 32(c)(3)(C) by inquiring of Hall whether he wished to make a statement before it announced his sentence. The text of the rule provides no basis for concluding that the defendant has a right to make a statement to the jury prior to the jury’s arriving at its sentencing recommendation. Compliance with the strict language of the rule is achieved when, as was the case here, the district court allows the defendant to make a statement to the court after the jury returns its recommendation but before the district court imposes sentence. Hall responds that this interpretation of Rule 32(c)(3)(C) would render allocution an empty gesture because the district court has no discretion to disregard the jury’s recommendation. However, other circumstances exist in which allocution is equally devoid of practical impact. This is the. case when the statutory mandatory minimum sentence for a particular offense exceeds the maximum sentence under the otherwise applicable U.S. Sentencing Guidelines range. In that circumstance, “the court is required to impose the statutory minimum sentence.” Santana v. United States, 98 F.3d 752, 756 (3d Cir.1996); see also U.S. Sentencing Guidelines Manual § 5G1.1(b) (“Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutory minimum sentence shall be the guideline sentence.”). Furthermore, § 3593(c) counsels against construing Rule 32(c)(3)(C) as establishing an unconditional right for the defendant to make an unsworn statement of remorse to the jury. Section 3593(c) sets forth with great specificity the type of information that may be submitted to the jury during the penalty phase of a capital trial and the circumstances under which it may be presented. In this regard, the statute provides as follows: At the sentencing hearing, information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be considered under section 3592. Information presented may include the trial transcript and exhibits if the hearing is held before a jury or judge not present during the trial, or at the trial judge’s discretion. The defendant may present any information relevant to a mitigating factor. The government may present any information relevant to an aggravating factor for which notice has been provided.... Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. 18 U.S.C. § 3593(c) (emphasis added). Construing Rule 32(c)(3)(C) as granting a defendant the unconditional right to make an un-sworn statement of remorse to the jury would contravene § 3593’s mandate that the district court exercise discretion in determining whether to exclude any information offered by the parties on the basis that its probative value “is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” Id. Section 3593(c) does not contemplate exempting any type of information offered at a sentencing hearing from the district court’s gatekeeping function, and we decline to interpret Rule 32(c)(3)(C) to have this effect when the plain language of the rule does not dictate such an interpretation. Furthermore, both Hall and the government concede that § 3593 authorized Hall to make a sworn statement of remorse that would have been subject to eross-examination. Construing Rule 32(c)(3)(C) as creating a per se right to make an unsworn statement of remorse to the jury that is not subject to cross-examination would in no sense increase the accuracy and reliability of the capital-sentencing process. When the district court receives a statement in allocution, it recognizes the legal effect of the fact that the statements are not sworn and the attendant potential effect of this fact upon the credibility of the defendant’s statements; the same cannot be said for a jury. Cf. State v. Williams, 688 So.2d 1277, 1284 (La.Ct.App.1997) (“The right of allocution has normally been reserved to a defendant addressing the sentencing judge.”); Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846, 858 (1989) (“We find no reason in law or logic why the defendant’s presentation of evidence in support of his claim that life imprisonment is the appropriate sentence should be shielded from testing for truthfulness and reliability that is 'accomplished by cross-examination.”). We therefore conclude that the district court did not violate Rule 32(e)(3)(C) by denying Hall's request to make an unsworn statement of remorse before the jury. 2. Common-Law Right of Allocution Hall next contends that, even if Rule 32(c)(3)(C) does not expressly provide him with a per se right to make an unsworn statement of remorse before the jury, he possesses a common-law right to do so. He further argues that we should not construe § 3593 as abrogating this common-law right because “[i]t is a well-established principle of statutory construction that ‘[t]he common law ... ought not to be deemed to be repealed, unless the language of a statute be clear and explicit for this purpose.’ ” Norfolk Redev. & Housing Auth. v. Chesapeake & Potomac Tel. Co., 464 U.S. 30, 35, 104 S.Ct. 304, 78 L.Ed.2d 29 (1983) (quoting Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cranch) 603, 623, 3 L.Ed. 453 (1813) (second set of brackets and ellipses in original)). We conclude, however, that no such common-law right exists. At common law, a felony defendant had a right to have the court formally inquire “ “what he had to say why judgment should not be given against him.’” Paul W. Barrett, Allocution, 9 Mo. L.Rev. 121 (1944) (quoting Rex & Regina v. Geary, 2 Salk. 630 (K.B.1689-1712)); see also State v. Green, 336 N.C. 142, 443 S.E.2d 14, 42 (1994). The right of allocution developed in a time in which the common-law judge had no discretion as to the punishment for felonies; as such, the point of the question to the defendant was not to elicit mitigating information. See Barrett, supra, at 120-21. Rather, the question was designed to afford the defendant a formal opportunity to present certain strictly-defined common-law grounds requiring the avoidance or delay of sentencing, including a claim that the defendant was not the person convicted, had the benefit of clergy, was insane, or was pregnant. See id.; 1 Joseph Chitty, The Criminal Law 698, 761-62 (1841); 3 Charles Alan Wright, Federal Practice and Procedure § 525, at 82 (2d ed. 1982) (“The common law for many centuries has recognized the right of a defendant to ‘allocution,’ a formal statement by the defendant of any legal reason why he could not be sentenced.”). Since the mid-nineteenth century, however, modern developments in criminal procedure, including the advent of sentencing discretion, the right of the accused to counsel, and the right of the accused to testify on his own behalf, have led to varied treatment of the right of allocution. See Barrett, supra, at 126-43. Some jurisdictions have concluded that the common-law right of allocution encompasses the right of the defendant to make unsworn statements to the jury that are not subject to cross-examination. See, e.g., Harris v. State, 306 Md. 344, 509 A.2d 120, 127 (1986) (‘We conclude that, under the common law applicable to capital sentencing proceedings at the time [the defendant] was sentenced, a defendant who timely asserts his right to allocute [before the jury], and provides an acceptable proffer, must be afforded a fair opportunity to exercise this right.”); Homick v. State, 108 Nev. 127, 825 P.2d 600, 604 (1992) (‘We conclude that capital defendants in the State of Nevada enjoy the common law right of allocution [before the jury].”); State v. Zola, 112 N.J. 384, 548 A.2d 1022, 1046 (1988) (recognizing under the court’s supervisory power the right of a capital defendant to make an unsworn plea for mercy to the jury); State v. Lord, 117 Wash.2d 829, 822 P.2d 177, 216 (1991) (indicating that the defendant had a right to make an unsworn plea for mercy before the jury that was not subject to cross-examination). However, other jurisdictions have held that no such common-law right exists. See, e.g., People v. Robbins, 45 Cal.3d 867, 248 Cal.Rptr. 172, 755 P.2d 355, 369 (1988) (“Given [that a capital defendant possesses the right to testify and offer other mitigating evidence], we fail to see the need, much less a constitutional requirement, for a corresponding ‘right to address the sentencer without being subject to cross-examination’ in capital cases.”); People v. Kokoraleis, 132 Ill.2d 235, 138 Ill.Dec. 233, 547 N.E.2d 202, 224 (1989) (declining to exercise its supervisory power to recognize a rule “allowing defendants in capital sentencing hearings ... to make a brief, unsworn plea for leniency without being subject to cross-examination”); State v. Whitfield, 837 S.W.2d 503, 514 (Mo.1992) (en banc) (“Despite defendant’s claim to the contrary, the right of allocution in Missouri does not extend to addressing the jury.”); State v. Perkins, 345 N.C. 254, 481 S.E.2d 25, 41 (“[W]e have held that a defendant does not have a constitutional, statutory, or common law right to make unsworn statements of fact to the jury at the conclusion of a capital sentencing proceeding.”), cert. denied, — U.S. -, 118 S.Ct. 111, 139 L.Ed.2d 64 (1997); Duckett v. State, 919 P.2d 7, 22 (Okla.Crim.App.1995) (“[W]e conclude that there is no statutory, common-law or constitutional right of a defendant to make a plea for mercy or otherwise address his sentencing jury, in addition to closing argument by counsel.” (footnote omitted)); State v. Stephenson, 878 S.W.2d 530, 551 (Tenn.1994) (holding that no common-law right of allocution exists in Tennessee because the right is nothing more than an empty formality in light of the criminal defendant’s right to counsel). Suffice it to say, Hall stands on shaky ground when he asserts that a general common-law right exists entitling a capital defendant to address the sentencing jury unsworn and not subject to cross-examination. Moreover, even if such a common-law right existed, its continued recognition in federal capital cases would be inconsistent with the procedural framework for capital sentencing hearings established by the FDPA. As noted earlier, § 3593(c) vests the district court with a gatekeeping role in determining what information — both mitigating and aggravating— reaches the jury. It may exclude information “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). The Pennsylvania Supreme Court interpreted that state’s capital sentencing scheme, which vests the trial court with similar authority, to abrogate any common-law right of the defendant to make unsworn statements to the jury on the following grounds: Whatever force the common law of allocution has with respect to other criminal cases, the General Assembly has abrogated that law and replaced it with statutory law devised specifically for first degree murder cases. The legislature has provided that a sentencing hearing is required at which evidence may be presented to the jury, or the judge as the case may be. The court is given discretion to determine what evidence will be received as relevant and admissible on the question of the sentencfe to be imposed. Following the presentation of evidence, counsel are permitted to argue to the sentencing body for or against the death sentence. It is apparent from the structure provided that this evidentiary hearing is intended to serve as part of the “truth-determining process” to enable the sentencer to discern and apply the facts bearing on the determination of the appropriate sentence. Implicit in the fact that the statute assigns to the defendant the burden of proving mitigating circumstances by a preponderance of evidence is the understanding that the jury is to asses[s] the evidence for credibility. It must be left open for the Commonwealth to challenge the veracity of facts asserted and the credibility of the person asserting those facts, whether that person is a witness or the defendant. We find no reason in law or logic why the defendant’s presentation of evidence in support of his claim that life imprisonment is the appropriate sentence should be shielded from the testing for truthfulness and reliability that is accomplished by cross-examination. Abu-Jamal, 555 A.2d at 857-58. We find this analysis persuasive in construing the FDPA. We therefore conclude that Hall possessed no federal common-law right to allo-cute before the jury. 3. Allocution as an Independent Constitutional Right Hall next asserts that he possesses a constitutional right to allocute before the jury. The Supreme Court has never squarely addressed the issue of whether a defendant who affirmatively requests the opportunity to allocute, either before the court or the jury, is denied due process by the trial court’s refusal to grant the request. In Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), the Court held that a district court’s failure to expressly ask a defendant represented by counsel whether he wished to make a statement before imposition of sentence was not an error of constitutional dimension and therefore provided no basis for a § 2255 collateral attack upon the defendant’s sentence. See id. at 428, 82 S.Ct. 468. The court expressly declined to consider whether the district court’s denial of an affirmative request by a defendant to make a statement prior to the imposition of sentence would rise to the level of constitutional error. See id. at 429, 82 S.Ct. 468; see also McGautha v. California, 402 U.S. 183, 219 n. 22, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971) (noting that whether a trial court’s denial of a defendant’s request to plead for mercy rises to the level of a constitutional violation remains an open question), vacated in part on other grounds, Crampton v. Ohio, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972). We conclude that a criminal defendant in a capital case does not possess a constitutional right to make an unsworn statement of remorse before the jury that is not subject to cross-examination. In Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961), Justice Frankfurter observed that the ultimate value of allocution as a procedural right in the context of modern criminal procedure rests in the fact that “[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” Id. at 304, 81 S.Ct. 653. Neither the government nor Hall contends that Hall would not have been permitted to testify at the sentencing hearing and thereby in his own words introduce “any information relevant to a mitigating factor.” 18 U.S.C. § 3593(c). We simply cannot conclude that fundamental fairness required that Hall be allowed to make such a statement without being sworn or subject to cross-examination. This conclusion is bolstered by the varied conclusions that the states have reached, discussed supra, as to whether a criminal defendant has a right to make an unsworn statement of remorse or plea for mercy before a sentencing jury. Cf. Medina v. California, 505 U.S. 437, 446, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (“Historical practice is probative of whether a procedural rule can be characterized as fundamental.”). 4. Denial of Procedural Parity Hall next contends that, even if the Constitution does not vest criminal defendants with an independent, per se right to make an unsworn statement in allocution before the jury, the district court’s denial of his request to make such a statement was nonetheless unconstitutional because the district court allowed the government to introduce similarly nontestimonial victim impact statements. Hall contends that such disparate treatment constitutes an unconstitutional disruption of “the balance of forces between the accused and his accuser.” Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). We disagree. The constitutionally required balance between prosecution and defense is “a balance between the total advantages enjoyed by each side rather than an insistence on symmetry at every stage in the process.” Tyson v. Trigg, 50 F.3d 436, 441 (7th Cir.1995). In this case, we conclude that no significant imbalance existed in the total advantages afforded Hall and the government at sentencing. First, contrary to Hall’s contention, the district court actually allowed him to present evidence of a type similar to the victim impact statements. Specifically, the district court allowed Hall to introduce hearsay evidence of his own remorse in the form of his sister’s testimony of his statements of remorse to her when she visited him in prison. The government was not allowed to cross-examine Hall as to the contents of these statements. Second, Agnes Rene, Lisa Rene's mother and the author of one of the three victim impact statements introduced at sentencing, testified during the sentencing hearing regarding the impact of the loss of her daughter. Hall declined to cross-examine her. This provides a strong indication that Hall did not consider cross-examination of the makers of the victim impact statements to be vital-or, for that matter, even beneficial-to his defense. Third, the district court’s refusal to allow Hall to make an unsworn statement that was not subject to cross-examination constituted at best a marginal procedural disadvantage. Had Hall taken the stand and offered limited testimony in substance equivalent to his proffered statement in allocution, he would have waived his Fifth Amendment privilege against self-incrimination only as to matters reasonably related to the contents of that statement. See Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958) (holding that a criminal defendant "could not take the stand to testify in her own behalf and also claim the right to be free from cross-examination on matters raised by her own testimony on direct examination" (emphasis added)); United States v. Hernandez, 646 F.2d 970, 979 (5th Cir. Unit B June 1981) (noting that, in cross-examining a criminal defendant who chooses to testify, "[t~he government's questions must be reasonably related to the subjects covered by the defendant's direct testimony." (internal quotation marks omitted)). A great deal of the type of information that the government would have likely sought to admit to impeach Hall's testimony or directly refute his claims of remorse and acceptance of responsibility was admitted as direct evidence of aggravating factors during the sentencing hearing, particularly the non-statutory factor that "Hall constitutes a future danger to the lives and safety of other persons." Specifically, the government offered evidence of Hall's prior convictions and unadjudicated offenses. Additionally; the government introduced the testimony of Larry Nichols, one of Hall's fellow inmates at the correctional facility where Hall was incarcerated prior to trial. Nichols testified that Hail joked and bragged about repeatedly raping Lisa Rene. He also testified that Hall told him that, given the opportunity, he would kill Steven Beckley because, were it not for Beckley's assistance, the government would have had no case against him. Additionally, Nichols testified that Hall informed him of his plans to attempt to escape from the correctional facility in which they were incarcerated by taking his lawyer hostage using a "shank," a homemade knife. Hall has pointed to no information that would have been rendered relevant by virtue of his offering testimony similar in substance to his proffered statement in allocution which the government did not present as direct support of the aggravating factors the existence of which it sought to prove during the sentencing hearing. Thus, we conclude that the district court's decision to admit victim impact statements offered by the government but to exclude Hall's request to make an unsworn statement in allocution to the jury did not unconstitutionally skew the balance of procedural advantage in the government's favor. 5. Violation of § 3593's Evidentiary Standards Hall next argues that the district court abused its discretion in declining to allow him to make an unsworn statement of remorse and plea for mercy before the jury. Section 3593(c) provides that information need not be admissible under the Federal Rules of Evidence in order to be admissible at a hearing conducted pursuant to the statute. However, the statute provides that the district court may exclude information "if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." 18 LLS.C3. § 3593(c). The district court has "considerable discretion in controlling the presentation of the `information' to the jury in both content and form." United States v. McVeigh, 944 F.Supp. 1478, 1487 (D.Colo.1996). Assuming that an unsworn statement such as the one Hall proffered is theoretically admissible during an FDPA sentencing hearing, we conclude that the district court did not abuse its discretion in declining to admit it. The district court could properly conclude that the danger that Hall's unsworn, uncross-examinable testimony would mislead the jury outweighed the probative, value of the information conveyed in ~the te~tir~iony, particularly given the fact that such information was readily available in a superior form: Hall’s sworn testimony, which would have been subject to testing for truthfulness and accuracy through cross-examination by the government. B. Conditioning the Presentation of Psychiatric Evidence on Submission to a Psychiatric Examination Hall next contends that the district court erred in conditioning his right to present psychiatric evidence in mitigation of punishment upon his submission to a government psychiatric examination prior to trial. Hall first argues that the district court could not properly compel him to undergo a government psychiatric examination as a condition upon his being allowed to introduce psychiatric evidence at sentencing because doing so unconstitutionally forced him to choose between exercising his Fifth Amendment privilege against self-incrimination and his Eighth Amendment right to present evidence in mitigation of punishment. We disagree. This court has long recognized that “a defendant who puts his mental state at issue with psychological evidence may not then use the Fifth Amendment to bar the state from rebutting in kind.” Schneider v. Lynaugh, 835 F.2d 570, 575 (5th Cir.1988). This rule rests upon the premise that “[i]t is unfair and improper to allow a defendant to introduce favorable psychological testimony and then prevent the prosecution from resorting to the most effective and in most instances the only means of rebuttal: other psychological testimony.” Id. at 576. Hall correctly notes that he did not waive his Fifth Amendment privilege against self-incrimination merely by giving notice of his intention to submit expert psychiatric testimony at the sentencing hearing. See Brown v. Butler, 876 F.2d 427, 430 (5th Cir.1989) (holding that the state could not introduce expert testimony based upon a previous psychological examination of the defendant where the defendant announced an intention to offer expert psychological evidence but never actually did so). However, had he actually offered such evidence, the district court would not have violated Hall’s privilege against self-incrimination by admitting psychiatric testimony subsequently offered by the government. Hall’s claim that the district court could not condition his right to introduce expert psychiatric evidence based upon out-of-court examination of Hall upon his submission to a government psychiatric examination therefore lacks merit. In the same sense that Hall could not himself testify at the sentencing hearing regarding his remorse or acceptance of responsibility and then refuse cross-examination on this issue, he could not offer expert psychiatric testimony based upon his own statements to a psychiatrist and then deny the government the opportunity to do so as well in rebuttal. See Estelle v. Smith, 451 U.S. 454, 461-69, 472, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (holding that the admission of statements made by the defendant during a pretrial psychiatric examination violated his Fifth Amendment privilege against compelled self-incrimination because he was not advised before the examination that he had a right to remain silent and that any statement that he made could be used against him at a capital-sentencing hearing, but noting that “a different situation arises where a defendant intends to introduce psychiatric evidence at the penalty phase”); Vanderbilt v. Collins, 994 F.2d 189, 196 (5th Cir.1993) (“If a defendant requests a [psychiatric] examination on the issue of future dangerousness or presents psychiatric evidence at trial, the defendant may be deemed to have waived the fifth amendment privilege.”). Hall, along with the American Or-thopsychiatric Association and the American Association on Mental Retardation as amici curiae, argues in the alternative that, in order to adequately safeguard his Fifth Amendment privilege against self-incrimination, the district court could not order a government psychiatric examination unless it sealed the results of the examination until the penalty phase of trial. Otherwise, he argues, he could have no guarantee that the government would not utilize the results of the examination or the fruits thereof as evidence in the guilt phase of his trial. This argument lacks merit. The Supreme Court has held that, when a defendant claims that the government has sought to introduce the fruits of a coerced confession, the defendant “must go forward with specific evidence demonstrating taint,” upon which the government “has the ultimate burden of persuasion to show that its evidence is untainted.” Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); see also Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939) (“[T]he trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin.”); United States v. Cherry, 759 F.2d 1196, 1207 (5th Cir.1985) (“It is firmly established that, once the defendant goes forward with specific evidence demonstrating taint, the government has the final burden of persuasion to show that the evidence is untainted.”); 5 Wayne R. LaFave, Search and Seizure § 11.2(b), at 45 (3d ed.1996). We are convinced that this evidentiary framework provides all of the protection against the introduction of the fruits of the government psychiatric examination prior to Hall’s introduction of psychiatric evidence that the Constitution requires. Had Hall undergone the government psychiatric examination and believed that the government was improperly seeking to introduce evidence that it derived from the examination, he could have precluded the introduction of such evidence by offering some evidence of taint. The district court would have been required to exclude the evidence unless the government could carry its burden of persuading the court that the evidence was not tainted. The only specific safeguard that Hall requested in his motion opposing the government’s request for a psychiatric examination and oral argument on this motion was the sealing of the results of the examination until the penalty phase of his trial. Hall has cited several cases in which district courts have imposed such a safeguard. See United States v. Beckford, 962 F.Supp. 748, 761 (E.D.Va.1997); United States v. Haworth, 942 F.Supp. 1406, 1408-09 (D.N.M.1996); United States v. Vest, 905 F.Supp. 651, 654 (W.D.Mo.1995). While we acknowledge that such a rule is doubtless beneficial to defendants and that it likely advances interests of judicial economy by avoiding litigation over whether particular pieces of evidence that the government seeks to admit prior to the defendant’s offering psychiatric evidence were derived from the government psychiatric examination, we nonetheless conclude that such a rule is not constitutionally mandated. Our conclusion in this regard is bolstered by Rule 12.2(c) of the Federal Rules of Criminal Procedure, which provides that, when a defendant intends to rely upon an insanity defense during the guilt phase of his trial, the district court may order a mental examination upon motion by the government. See Fed.R.CrimJP. 12.2(c). In order to safeguard the defendant’s privilege against self-incrimination, the rule provides as follows: No statement made by the defendant in the course of any examination provided for by this rule, whether the examination be with or without the consent of the defendant, no testimony by the expert based upon such statement, and no other fruits of the statement shall be admitted in evidence against the defendant in any criminal proceeding except on an issue respecting mental condition on which the defendant has introduced testimony. Id. Noticeably absent from the rule is any requirement that the government be denied access to the results of the examination until after the defendant actually introduces testimony regarding his mental condition. Rather, the rule merely precludes the government from introducing as evidence the results of the examination or their fruits until after the defendant actually places his sanity in issue. Yet the rule has consistently been held to comport with the Fifth Amendment. See, e.g., United States v. Lewis, 53 F.3d 29, 35 n. 9 (4th Cir.1995); United States v. Stockwell, 743 F.2d 123, 127 (2d Cir.1984) ("[W]hile we do not wish to encourage the practice of requiring defendants to submit to a psychiatric examination in the prosecutor's presence (either in person or through the use of a tape recording), such a procedure cannot be said to constitute a per se violation of Rule 12.2(c) and the defendant's Fifth Amendment rights."). Given that the government presents its case-in-chief during the guilt phase prior to the defendant, we perceive no functional distinction between the risk that the governthent will improperly utilize the fruits of a psychiatric examination undertaken pursuant to Rule 12.2 during its case-in-chief (and thus prior to the defendant's offering psychiatric evidence of insanity) and the risk that the government in this case would improperly utilize the fruits of the court-ordered psychiatric examination prior to Hall's introduction of psychiatric evidence during the penalty phase. We therefore reject Hall's contention that the district court violated his Fifth Amendment privilege against self-incrimination by ordering him to undergo a psychiatric examination as a condition upon his offering psychiatric evidence çluring the sentencing hearing or by declining to order the results of the examination sealed until the sentencing hearing. C. Admission of Unduly Prejudicial Evidence Hall next claims that the district court abused its discretion by admitting certain evidence which he claims was irrelevant and highly prejudicial. Specifically, he complains of the district court's admission of (1) graphic photographs of Lisa Rene's body; (2) a videotape depicting a walk through Byrd Lake Park to the grave site, surveillance of the area where Lisa Rene's burned clothing was recovered, and an examination of the grave site during the exhumation of Lisa Rene's body; and (3) testimony by Hall's girlfriend in which she claimed to have been robbed at gunpoint while purchasing drugs for Hall. We review a district court's eviden-tiary rulings for an abuse of discretion. See United States v. Torres, 114 F.3d 520, 525-26 (5th Cir.), cert. denied, - U.S. , 118 S.Ct. 316, 139 L.Ed.2d 244 (1997). 1. Photographs Hall claims that the district court abused its discretion by admitting photographs of Lisa Rene's body hi the grave and after its removal during the guilt phase of his trial. Hall first argues that the photographs were rendered legally irrelevant by the fact that he offered to stipulate to the identity of the victim and her cause of death. Additionally, Hall complains that the photographs were particularly gruesome because they depicted Lisa Rene's body in a state of decomposition. He also argues that the photographs were cumulative of detailed testimony of a medical examiner regarding the condition of Lisa Rene's body. As such, he argues that the district court's admission of the photographs violated Rule 403 of the Federal Rules of Evidence because any probative value the photographs might have possessed was "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.” Fed. R.Evid. 403. We note as an initial matter that the photographs were relevant to Lisa Rene’s identity and the cause of her death, and Hall’s offer to stipulate to these facts did not render them irrelevant. The advisory committee notes to Rule 401 of the Federal Rules of Evidence, which establishes the definition of legal relevance, speak directly to this issue: The fact to which the evidence is directed need not be in dispute. While situations will arise which call for the exclusion of evidence offered to prove a point conceded by the opponent, the ruling should be made on the basis of such considerations as waste of time and undue prejudice (see Rule 403), rather than under any general requirement that evidence is admissible only if directed to matters in dispute. Fed.R.Evid. 401 advisory committee notes. The reason that a criminal defendant cannot typically avoid the introduction of other evidence of a particular element of the offense by stipulation is that the government must be given the opportunity “to present to the jury a picture of the events relied upon. To substitute for such a picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight.” Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997) (internal quotation marks omitted). Our sole inquiry, then, is whether admission of the photographs violated Rule 403. See id., 117 S.Ct. at 650 (“If ... relevant evidence is inadmissible in the presence of other evidence related to it, its exclusion must rest not on the ground that the other evidence has rendered it ‘irrelevant,’ but on its character as unfairly prejudicial, cumulative or the like, its relevance notwithstanding.”). We conclude that admission of the photographs did not violate Rule 403. In United States v. McRae, 593 F.2d 700 (5th Cir.1979), this court addressed a Rule 403 challenge to the district court’s admission in a murder trial of numerous photographs of the victim and the death scene which the district court had described as “gross, distasteful and disturbing.” See id. at 707. One of these photographs was “a view of [the victim’s] corpse, clothed in her bloody garments, bent forward so as to display an exit wound in the back of her skull produced by part of [the defendant’s] dum-dum bullet, which exploded in her brain”; another was “a front view of [the victim’s] body, seated in the chair where she died, her left eye disfigured by the bullet’s entry and her head broken by its force.” Id. In holding that the admission of these photographs did not violate Rule 403, we observed, Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403. Unless trials are to be conducted on scenarios, on unreal facts tailored and sanitized for the occasion, the application of Rule 403 must be cautious and sparing. Id. We see no basis for distinguishing between the photographs at issue in McRae and those at issue here. We therefore conclude that the district court did not abuse its discretion in concluding that the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice or by concerns regarding the needless presentation of cumulative evidence. See United States v. Rezaq, 134 F.3d 1121, 1138 (D.C.Cir.1998) (upholding a district court’s admission of an autopsy photograph showing the removal of a bullet from a hijacking victim’s head even though the photograph was only probative of the fact that the victim was shot in the head, a “point [that] did not especially need elucidation”); United States v. Analla, 975 F.2d 119, 125-26 (4th Cir.1992) (holding that the district court did not abuse its discretion in admitting photographs depicting two gunshot wounds to a robbery victim’s head and another photograph depicting an individual murdered during the robbery lying in a pool of blood); United States v. Bowers, 660 F.2d 527, 529-30 (5th Cir. Unit B Sept.1981) (holding that the district court did not abuse its discretion in admitting a color photograph of a child’s lacerated heart to prove cause of death and noting “that the mere fact that appellant stipulated with the government as to the cause of death did not preclude the government from offering proof on that issue"). 2. Videotape Hail next contends that the district court abused its discretion in admitting during the penalty phase of his trial a videotape depicting a walk through the park in which Lisa Rene was killed, the area where her burned clothes were recovered, and the exhumation of her body. He further complains that the district court erred by allowing the jury to view the tape during deliberations when they had not previously viewed it in open court. We conclude that the district court did not abuse its discretion in concluding that the videotape's "probative value [was not] outweighed by the danger of ~reating unfair prejudice, confusing the issues, or misleading the jury." 18 U.S.C. § 3593(c). As the government points out, the videotape was relevant to the aggravating factor that the killing was committed in a heinous, cruel, or depraved manner in that it depicted the path through the woods toward the grave site that Hall and his cohorts foi~eed Lisa Rene to walk barefoot on two occasions. Moreover, the depiction of the grave site demonstrated the amount of planning that went into the murder and was thus probative regarding the aggravating factor that the murder was committed with substantial planning and premeditation. Even if we were to conclude that the district court abused its discretion in admitting the videotape, such error was harmless. An erroneous evidentiary ruling constitutes harmless error if it does not affect, the substantial rights of the complaining party. See Torres, 114 F.3d at 526; see also United States v. Asibor, 109 F.3d 1023, 1032 (5th Cir.), cert. denied, - U.S. , 118 S.Ct. 254, 139 L.Ed.2d 182 , and cert. denied, - U.S. , 118 S.Ct. 638, 139 L.Ed.2d 617 (1997). An error is deemed to have affected a criminal defendant's substantial rights if it "`had substantial and injurious effect or influence in determining the jury's verdict.'" United States v. Lowery, 135 F.3d 957, 959 (5th Cir.1998) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We conclude that the videotape could not have had a substantial and injurious effect or influence on the jury's sentencing recommendation because, as Hall concedes, the contents of the tape were largely cumulative of the testimony and photographs admitted during the guilt phase of Hall's trial. See United States v. Allie, 978 F.2d 1401, 1409 (5th Cir.1992) (stating that the improper admission of evidence that is merely cumulative constitutes harmless error); 3A CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 854, at 311 (2d ed.1982) ("Error in the admission of evidence is harmless if the facts shonn by that evidence are already before the jury through other properly-admitted evidence."). As to Hall's claim that the district court improperly allowed the jury to view the videotape during deliberations even though the jury had not previously viewed the tape in open court, our review is sharply circumscribed by the scope of Hall's objection when the district court admitted the tape into evidence. Hall objected to the admissibility of the tape; however, he did not object to the district court's decision to allow the jurors to view the tape only at their discretion during deliberations. Accordingly, we review Hall's claim that the jury should not have been allowed to view the tape during deliberations when they had not previously viewed it in open court for plain error. See FED. R.CRIM. P. 52(b); United States v. Jones, 132 F.3d 232, 243 (5th Cir.1998). Under the plain error standard, we may reverse only if "(1) there was error (2) that was clear and obvious and (3) that affected [Hall's] substantial rights." United States v. Dupre, 117 F.3d 810, 817 (5th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 857, 139 L.Ed.2d 756 (1998); see also United States v. Olano, 507 U.S. 725, 731-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). "Normally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy. the `affecting substantial rights' prong of [the plain error inquiry]." Olano, 507 U.S. at 735, 113 S.Ct. 1770. Even when these criteria are satisfied, we should exercise our discretion to reverse only if the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 732, 113 S.Ct. 1770 (internal quotation marks and brackets omitted); see also Dupre, 117 F.3d at 817. Assuming that the district court erred in allowing the jury to view the videotape only during deliberations, we cannot say that such error was open or obvious nor that it affected Hall’s substantial rights. The only prejudice that Hall alleges resulted from the fact that the jurors did not view the tape in open court was that his counsel was prevented from making a record of any excessive or prejudicial responses to the evidence. However, Hall has cited no cases in which this court’s evaluation of evidentiary rulings hinged upon the jury’s actual reactions to the purportedly inadmissible evidence. Moreover, we note that, by giving the jury discretion as to whether to view the videotape, Hall was, at least in a limited sense, benefitted by the fact that the jury may not have viewed the tape. This is a possibility that would not have existed had the district court chosen to play the tape in open court. That may very well have been the reason that Hall’s attorneys did not object to the district court’s decision not to play the videotape in open court in the first place. Hall thus has not established that the district court’s decision not to play the videotape in open court rises to the level of plain error. 3. Testimony Regarding Robbery of Hall’s Girlfriend Hall next complains of the district court’s admission of the testimony of LaTonya Anders, Hall’s girlfriend, that she was robbed while in Houston attempting to purchase crack cocaine on Hall’s behalf while he was on parole and that he continued to send her to purchase drugs after these incidents. This testimony was generally relevant to Hall’s future dangerousness in that (1) it demonstrated the lengths to which Hall would go to continue his drug trafficking activities and (2) it demonstrated that he was an organizer and leader of criminal activity. While the small amount of testimony regarding Anders’s robbery may have had little, if any, relevance to the aggravating factors that the government sought to prove, we are confident that, given the heinousness of the offense of which Hall was convicted, this isolated testimony could not have had a substantial and injurious effect or influence on the jury’s sentencing recommendation. As such, any error in its admission was harmless. D. Evidence of Unadjudicated Offenses Hall contends that the district court improperly admitted evidence of unadjudicated offenses during the penalty phase. Specifically, Hall complains of the district court’s permitting the government to introduce the testimony of Erma Willis and her son, Geren Willis, that, in May 1994, Hall waited in a car outside them home with a gun on the dashboard while Hall’s cousin forced another individual to attempt to obtain money from Ms. Willis. David Baker, who at that time was employed as an Arkansas parole officer, testified that Ms. Willis reported the incident to him and that he forwarded the information to Hall’s parole officer in Pine Bluff. Additionally, Hall complains of the testimony of Larry Nichols, an inmate in the same correctional facility where Hall was held prior to his trial, regarding Hall’s plans to escape from prison and his threats against Beckley, discussed in Part II.A.4, supra. Hall complains that introduction of the above testimony violated due process and the Eighth Amendment’s “heightened ‘need for reliability in the determination that death is the appropriate punishment in a specific case.’” Caldwell v. Mississippi, 472 U.S. 320, 340, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)). He contends that this problem was compounded by the fact that the district court did not instruct the jury that, in order to consider unadjudicated criminal offenses in determining whether the government had established a particular aggravating factor, it was required to conclude that the government had proven the occurrence of the unad-judicated offense by a particular quantum of proof. With respect to Nichols’s testimony, Hall contends that the district court’s failure to instruct the jury regarding the evidentiar~ standard by which it was required to deter. mine whether the conduct about which Nich. ols testffi~d actually occurred allowed the jury to "conflate the process of fact-findinf and risk assessment" by ioncluding that "thE nature of the conduct Nichols alleged was s menacing that only a marginal amount ol proof would suffice to warrant considera