Full opinion text
HANSEN, Circuit Judge. On March 17, 1997, security guard Richard Heflin was killed during an armed robbery of the Lindell Bank & Trust in St. Louis (Forest Park), Missouri. Billie Jerome Allen and Norris G. Holder were charged and convicted in separate jury trials for violating 18 U.S.C. §§ 2, 2113(a) and (e) (1994) (armed robbery by force or violence in which a killing occurs) (Count I) and 18 U.S.C. §§ 2, 924(c)(1) and (j)(l) (1994 and Supp. II 1996) (carrying or using a firearm during a crime of violence and committing murder) (Count II). Allen was sentenced to life in prison on Count I and received a sentence of death on Count II. Holder received sentences of death for both Counts I and II. In these direct appeals, Allen and Holder raise numerous challenges to the constitutionality of the Federal Death Penalty Act of 1994, they allege that the district court committed several errors during jury voir dire, trial, and sentencing, and they raise various other statutory and constitutional challenges to their convictions and sentences. For the reasons discussed below, we affirm Allen’s and Holder’s convictions and sentences. I. Background Holder was a regular customer of the Lindell Bank & Trust. Five hundred dollars was automatically deposited to his account each month from a legal settlement Holder obtained after losing the lower portion of one leg in a train accident, and every month Holder withdrew that five hundred dollars. On March 13, 1997, four days before the date of the armed robbery, Holder brought Allen along with him for his monthly withdrawal of funds. Allen and Holder were also seen together on several other occasions during the ten days leading up to the armed robbery. Together they watched the movies “Heat” and “Set It Off’ which depicted assault-style takeover armed bank robberies similar in many details to the manner in which they later robbed the Lindell Bank & Trust. In preparation for the armed robbery, Holder supplied or obtained a Russian SKS semiautomatic assault rifle, a Chinese SKS semiautomatic assault rifle, a twelve-gauge shotgun, approximately two hundred rounds of ammunition consisting mostly of military style hollow point ammunition for the two SKS rifles, and a bulletproof vest which he wore. The night before the armed robbery two vans were stolen for use as the first two getaway vehicles after the robbery (Holder’s mother’s car was to be used as the third, and last, getaway vehicle). On the day of the armed robbery, March 17,1997, Allen and Holder parked the first getaway van on the street just outside the bank. Wearing dark ski masks and armed with the semiautomatic rifles — Allen with the Chinese SKS loaded with 11 rounds, and Holder with the Russian SKS loaded with 37 rounds and each carrying extra rounds of the hollow point ammunition— they rushed into the bank. The first man to enter immediately began firing shots at security guard Heflin, and during the course of the robbery Holder jumped over the tellers’ counter and retrieved money from the tellers’ drawers. The ballistics evidence showed that both rifles were discharged during the robbery and a total of sixteen shots were fired inside the bank, at least eight of which hit security guard Heflin who died shortly thereafter. Eleven of the shots came from the Chinese SKS rifle, three came from the Russian SKS rifle, and the remaining two could have come from either rifle. After the armed robbery, which lasted only a few minutes, Allen and Holder returned to the getaway van and sped off down the highway. Several witnesses spotted the two men exiting the bank and returning to the van. Bank customer William Green, after hearing gunshots while at the drive-up teller window, dialed 911 and followed the van onto the highway. He continued following the van as it sped down the highway and into Forest Park. As the van entered the park, Green saw it burst into flames. Pri- or to the armed robbery, the suspects had soaked the van with gasoline so that it would be easier to destroy the evidence once they reached their second getaway vehicle. The van apparently started on fire when one of the suspects flicked a cigarette lighter. After the van started on fire, the van’s passenger-^Allen — jumped out and ran into a wooded area. The other occupant, Holder, was on fire and two park workers helped to extinguish the flames. A police officer arrived on the scene simultaneously and arrested Holder. Allen, meanwhile, was spotted soon after he left the van on the opposite side of the wooded area by city forestry employee Bobby Harris. After making up a story about why the hair on his head was burned, Allen convinced Harris and another forestry employee to give him a ride to the nearest Metrolink station. Harris later identified Allen in a lineup and at trial. Allen was arrested early the next morning at his girlfriend’s apartment, the same apartment where he and Holder had stayed the night before the bank robbery and had together watched the movie “Set It Off.” II. Analysis Allen and Holder allege numerous constitutional, statutory, and procedural violations as grounds for relief from each of their respective convictions and sentences. We separately address each defendant’s claims. A. Billie Jerome Allen 1. Facial Constitutional Challenges Allen raises a host of facial constitutional challenges, based on the Eighth Amendment and Article I of the Constitution, to the Federal Death Penalty Act of 1994 (hereinafter “FDPA”). See 18 U.S.C. §§ 3591-3598 (1994). We review claims of constitutional error and issues of statutory construction de novo. See Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir.), cert. denied, 519 U.S. 874, 117 S.Ct. 193, 136 L.Ed.2d 130 (1996). a. Nonstatutory Aggravating Factors Allen argues that the use of non-statutory aggravating factors, which the FDPA explicitly allows, fails to adequately limit and guide the sentencing discretion of the jury in violation of various Supreme Court decisions interpreting the Eighth Amendment. See, e.g., Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (explaining that a sentencing body’s discretion must be suitably directed and limited, by clear and objective standards that provide specific and detailed guidance, so as to minimize the risk of wholly arbitrary and capricious action and to make rationally reviewable the process for imposing a death sentence) (citing Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), and Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). We disagree with Allen’s underlying premise that the purpose of the nonstatutory aggravating factors under the FDPA is to limit and guide a jury’s discretion in determining who is eligible to receive a sentence of death. The statutorily defined aggravating circumstances are those which channel the sentencer’s discretion because they are the circumstances which make a defendant eligible for the death penalty. See Lewis, 497 U.S. at 774, 110 S.Ct. 3092. The primary purpose of the non-statutory aggravating factors, as opposed to the listed statutory aggravating factors which do fulfill the role of limiting and guiding a jury’s discretion in making the eligibility decision, is to allow for the individualized determination of whether a death sentence is justified for a particular defendant; that is, they help to inform the selection decision. As the Supreme Court has explained, [o]ur capital punishment cases under the Eighth Amendment address two different aspects of the capital decision-making process: the eligibility decision and the selection decision.... To render a defendant eligible ... the trier of fact must ... find one ‘aggravating circumstance’ .... We have imposed a separate requirement for the selection decision, where the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence. What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime. Tuilaepa v. California, 512 U.S. 967, 971-72, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (internal quotations omitted). The Supreme Court has also stated the following: Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. Zant v. Stephens, 462 U.S. 862, 878, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). The framework of the FDPA passes constitutional muster because it does not allow imposition of the death penalty unless the jury first finds at least one statutory aggravating circumstance. The jury ... shall return special findings identifying any aggravating factor or factors set forth in section 3592 found to exist and any other aggravating factor for which notice has been provided under subsection (a) found to exist.... If no aggravating factor set forth in section 3592 is found to exist, the court shall impose a sentence other than death 18 U.S.C. § 3593(d). If no listed statutory aggravator is unanimously found by the jury, no sentence of death can be imposed. We therefore find no constitutional infirmity with the FDPA’s permitting the prosecution to. propose nonstatutory aggravating factors to fit the particular circumstances of a crime and to assist the jury in determining whether the death penalty should be imposed upon a defendant already determined to be eligible for that ultimate punishment. Allen also argues that the FDPA impermissibly delegates legislative power to government prosecutors by allowing them the discretion to propose nonstatutory aggravating factors to a capital sentencing jury. Congress may not delegate its legislative power to another Branch, but it may seek assistance from another Branch so long as Congress legislates “an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform.” Mistretta v. United States, 488 U.S, 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (upholding the United States Sentencing Guidelines). See id. at 390, 109 S.Ct. 647 (pointing out that the federal “sentencing function long has been a peculiarly shared responsibility” rather than “the exclusive constitutional province of any one Branch” and finding no unconstitutional delegation of legislative power). As the Fifth Circuit has pointed out, there are at least four limitations on a prosecutor’s discretion with respect to nonstatutory aggravating factors. See United States v. Jones, 132 F.3d 232, 239-40 (5th Cir.1998), aff'd, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). A jury must find the existence of at least one statutory aggravating factor before it can even consider proposed non-statutory factors, a prosecutor can only argue those nonstatutory aggravating factors for which the defendant has been given prior notice, a nonstatutory aggravating factor itself must conform with due process jurisprudence, and a district judge is required to screen out any irrelevant and unduly prejudicial information a prosecutor may try to introduce to the jury in order to prove a nonstatutory aggravating factor. Id. at 240. We agree with the Fifth Circuit that these limitations provide intelligible principles which constrain a prosecutor’s discretion such that the delegation is not unconstitutional. United States v. Paul, 217 F.3d 989, 1003 (8th Cir.2000) (holding that “the prosecutor’s authority to define nonstatutory aggravating factors is a constitutional delegation of Congress’s legislative power”); See also United States v. Tipton, 90 F.3d 861, 895 (4th Cir.1996)(holding that any delegation of legislative authority was permissible, without deciding whether there was in fact any delegation), cert. denied, 520 U.S. 1253, 117 S.Ct. 2414 (1997); United States v. McCullah, 76 F.3d 1087, 1106-07 (10th Cir.1996), cert. denied, 520 U.S. 1213, 117 S.Ct. 1699, 137 L.Ed.2d 825 (1997). Finally, Allen argues that the FDPA’s allowance of nonstatutory aggravating factors violates the constitutional prohibition against ex post facto laws. We reject Allen’s argument, however, because the statutes under which he was convicted make clear that a sentence of death is authorized, and nonstatutory aggravating factors are not used to determine eligibility for the death penalty. Thus, proposing nonstatutory aggravating factors to the jury does not in any way alter the definition of the underlying crime for which Allen was convicted, nor does it increase the punishment to which Allen is subjected. See Walton v. Arizona, 497 U.S. 639, 648, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990)(finding that aggravating circumstances are not separate penalties or offenses); Lewis, 497 U.S. at 782, 110 S.Ct. 3092 (1990) (finding that aggravating circumstances are not elements of any offense). b. Use of “Information” Allen argues that because the FDPA allows the introduction during the sentencing phase of “information” rather than only “evidence,” a jury’s sentencing decision under the FDPA is inherently unreliable in violation of the Eighth Amendment. We reject this claim. The FDPA allows either party to introduce any “information” relevant to an aggravating or mitigating factor, regardless of its admissibility under the federal rules of evidence, but provides that the 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). Thus, not only does the statute protect a defendant from both irrelevant information and overly prejudicial information, the relaxed evidentiary standard also works to a defendant’s advantage in helping to prove mitigating factors and to disprove aggravating factors. Allen’s reliance on California v. Brown, 479 U.S. 538, 542-43, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987), which used the term “evidence” rather than “information” in its opinion, is misplaced because the distinction between evidence and information was not at issue. We therefore reject Allen’s facial challenge to the FDPA’s relaxed evidentiary standard during sentencing. See Gregg, 428 U.S. at 204, 96 S.Ct. 2909 (“We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision.”); Jones, 132 F.3d at 242 (holding that “the [FDPA’s] relaxed evidentiary standard does not impair the reliability or relevance of information at capital sentencing hearings, but helps to accomplish the individualized sentencing required by the [Constitution”). c. Appellate Review Allen claims that the FDPA is unconstitutional because it lacks proportionality review. Allen argues that the Supreme Court’s decision in Gregg mandates proportionality review whenever a death penalty statute allows the consideration of nonstatutory aggravating factors in the final sentencing decision. We disagree with Allen’s reading of the Supreme Court’s holding in Gregg. See Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (holding that although proportionality review is an additional safeguard against arbitrarily imposed death sentences, neither precedent [including Gregg] nor the Eighth Amendment mandates proportionality review in every case). As the Supreme Court held in MeCleskey v. Kemp, "[w]here the statutory procedures adequately channel the sentencer's discretion, such proportionality review is not constitutionally required." 481 U.S. 279, 306, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). We hold that the FDPA has sufficient safeguards-notably the requirements that a jury find beyond a reasonable doubt the existence of one statutory aggravating factor and at least one of four requisite levels of specific intent on the part of a defendant, not to mention various other procedural protections -such that proportionality review is not required in order for the FDPA to pass constitutional muster. We also reject Allen’s argument that the absence of mandatory, automatic appellate review somehow violates the Eighth Amendment because it is incompatible with the evolving standards of decency of a maturing society. Even if this challenge to the FDPA is a valid argument under the Eighth Amendment, which we highly doubt, Allen lacks standing to raise this challenge because he has taken advantage of appellate review and thus can show no actual harm in the FDPA’s requirement that a defendant must initiate appellate review. d. Scope of FDPA Allen argues that the “remarkable breadth” of the FDPA fails to narrow genuinely the class of persons eligible for execution and fails to channel adequately a sentencing jury’s discretion. See Zant, 462 U.S. at 877, 103 S.Ct. 2733. We agree with the Fifth Circuit that, under the Constitution, the FDPA adequately narrows the class of persons eligible for the death penalty and sufficiently channels a jury’s sentencing discretion. See Jones 132 F.3d at 248-49 (finding that the FDPA narrows a jury’s sentencing discretion by first requiring that a defendant had the requisite intent and second that at least one statutory aggravating factor is present). Moreover, the FDPA limits the class of persons eligible for the death penalty even before the jury considers intent and aggravating circumstances by authorizing the death penalty only for certain federal crimes. In short, how broadly or how narrowly the death penalty should be applied as punishment, if at all, is essentially a political choice left to the people’s elected representatives in the legislative and executive branches, and we find none of the Eighth Amendment’s limitations on that legislative choice facially applicable to the FDPA. See, e.g., Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (ruling that the death penalty for rape is grossly disproportionate and excessive and thus cruel and unusual punishment); Enmund v. Florida, 458 U.S. 782, 788, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (prohibiting the death penalty where it is greatly disproportionate to a defendant’s culpability). We therefore reject Allen’s argument that the FDPA authorizes a sentence of death for too many federal crimes. In particular, with respect to this case, murder is a crime for which the death penalty has long been deemed appropriate. 2. Fifth Amendment Challenges a. Indictment Clause The FDPA requires the government to file with the court, and to serve on the defendant, a notice of intent to seek the death penalty “a reasonable time before the trial or before acceptance by the court of a plea of guilty.” 18 U.S.C. § 3593(a). This notice of intent must include a statement that the government believes the circumstances of the case justify imposing a sentence of death and that if the jury finds the defendant guilty the government will seek a sentence of death. Id. The notice must also set forth any aggravating factors the government intends to use as justification for a sentence of death. Id. There is no allegation that the government’s properly and timely filed notice of intent in this case has failed to meet the FDPA’s statutory notice requirements. Instead, Allen directly challenges the adequacy of the FDPA under the Constitution. Allen specifically argues that his sentence was imposed in violation of the Fifth Amendment’s Indictment Clause because the FDPA fails to require that the decision to seek the death penalty, just like the decision to charge a defendant with a federal offense, be routed through the Grand Jury. Allen also argues that the government’s failure to allege in his indictment both the mental culpability factor from § 3591(a) and the aggravating factors from § 3592(c) upon which it relied during sentencing as the justification for imposing a death sentence constitutes constitutional error in light of the Supreme Court’s recent rulings in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). We respectfully disagree. First, we reject Allen’s argument that his case did not become a capital case (as referred to in the Fifth Amendment) until the notice of intent was actually filed. We hold that the original indictment returned by the Grand Jury sufficiently alleged a capital offense against Allen upon which he could be tried and, if convicted, could be sentenced to death. The penalties listed for the offenses in the indictment against Allen are “death or life imprisonment” for Count I and “death or by imprisonment for any term of years or for life” for Count II. See 18 U.S.C. § 2113(e) (1994) and 18 U.S.C. § 924(j) (Supp. II 1996), respectively. Allen’s attempted reliance on Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), which held that once an indictment is returned, charges may not be broadened later except through the Grand Jury, is misplaced. The reasoning of Stirone is not implicated and does not control the outcome of this case because the original indictment sufficiently charged an offense which expressly subjects a convicted defendant to a maximum punishment of death. Because both § 2113(e) and § 924(j) specifically authorize the death penalty as punishment for any defendant found guilty of the listed offense, the Fifth Amendment’s Indictment Clause is satisfied. Congress is free to pass, and may even be required to pass under the Eighth Amendment, additional protections for a capital defendant prior to the actual imposition of a death sentence, as it did by requiring notice of intent to seek the death penalty along with notice of any proposed aggravating factors a reasonable time before trial. But these protections do not increase the maximum sentence set forth in each of the statutes for the specific offenses alleged in the indictment and thus do not amount to separate elements that must be alleged in the indictment. See Apprendi 120 S.Ct. at 2362-63; Jones, 526 U.S. at 251, 119 S.Ct. 1215. In short, even if Allen is correct that under the FDPA and the Eighth Amendment the charged offenses could not be prosecuted as capital crimes until the notice was filed along with the proposed aggravating factors, we conclude that the original indictment nevertheless sufficiently alleged a capital crime as required by the Fifth Amendment’s Indictment Clause. For similar reasons, we also reject Allen’s contention that aggravating factors and mental culpability factors must be alleged in an indictment in order to satisfy the Fifth -Amendment. A defendant is entitled to “ ‘a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’” Apprendi, 120 S.Ct. at 2356 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). Also, “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215. We note initially that the Sixth Amendment’s right to trial by jury and the Fifth Amendment’s due process requirement of proof beyond a reasonable doubt have been satisfied as to the mental culpability factors and the aggravating factors at issue here. We need only examine whether the Fifth Amendment’s indictment requirements have been met. We begin by determining whether the mental culpability factors and- statutory aggravating factors are elements of the underlying offense, because as already noted, every element of an offense must be charged in an indictment to satisfy the Fifth Amendment. The structure of the two statutes indicates that neither factor is an element of the offense of conviction. The two factors are listed in entirely different sections of the United States Code. Compare 18 U.S.C. §§ 2113(e) and 924(j) (setting forth the underlying criminal offenses) with 18 U.S.C. §§ 3591(a) and 3592(c) (setting forth the FDPA’s sentencing procedures and requirements). Thus, it is clear from the plain language of the various statutes that Congress did not make the mental culpability factors or the statutory aggravating factors elements of the underlying offense. The next question, then, is whether the mental culpability factors and statutory aggravating factors are deemed elements of the crime by virtue of being facts which are the basis for increasing the maximum punishment. See Apprendi, 120 S.Ct. at 2362-63 (holding that any fact, other than fact of prior convictions, which increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt); id. at 2368 (explaining that “every fact that is by law a basis for imposing or increasing punishment (in contrast with a fact that mitigates punishment)” is an element of the crime or aggravated crime) (Thomas and Scalia, JJ., concurring). We think that when read in the context of the Supreme Court’s decisions interpreting the Eighth Amendment in death cases over the past two decades, these two features of the FDPA are properly characterized as sentencing protections that shield a defendant from automatically receiving the statutorily authorized death sentence. The underlying crimes of conviction expose a convicted defendant to either death or a life sentence. In each case, death is the first punishment authorized by each statute. Under the FDPA, if a jury cannot agree unanimously beyond a reasonable doubt that a convicted defendant acted with one of the four listed mental culpability states, then a defendant’s maximum sentence is limited to life in prison. Similarly, if the jury cannot agree unanimously beyond a reasonable doubt that the convicted defendant’s actions fit the definition of at least one of the listed statutory aggravating factors, then a defendant’s sentence is limited to life in prison. Finally, if the jury cannot agree unanimously that the aggravating factors sufficiently outweigh the mitigating factors such that a sentence of death is justified, then the defendant’s sentence is limited to life in prison. Allen argues that each of the above jury determinations should be viewed as elements that increase the maximum penalty by assuming that a life sentence is the initial baseline from which the jury’s sentencing determinations under the FDPA are viewed. We reject this interpretation because the statutes at issue expressly authorize a maximum penalty of death and the sentencing factors of mental culpability and aggravating circumstances do not increase the sentencing range but rather provide the particularized standards for choosing which of the alternative available sentences should be imposed. Making a defendant automatically eligible for the death penalty absent these types of protective requirements is prohibited by Eighth Amendment jurisprudence. See Apprendi 120 S.Ct. at 2380 (noting that a legislature may not provide by statute that a person is death eligible automatically upon conviction because in the area of capital punishment, the Court has “imposed special constraints on a legislature’s ability to determine what facts shall lead to what punishment — we have restricted the legislature’s ability to define crimes”) (Thomas and Scalia, JJ., concurring). The fact-finding barrier that exists between a jury verdict that a defendant is guilty of a capital crime for which one punishment is known to be death and a court’s ability to impose that capital punishment, id., acts to protect the defendant from an automatic death sentence. Because of the unique context of this scheme, and because the statutes of conviction authorize a penalty of death, we hold that failure to allege the mental culpability and statutory aggravating factors in a capital defendant’s original indictment does not violate the Fifth Amendment’s Indictment Clause. See Walton, 497 U.S. at 648, 110 S.Ct. 3047 (explaining that aggravating circumstances are not separate penalties or offenses but rather are “ ‘standards to guide the making of the choice between the alternative verdicts of death and life imprisonment’ ”) (quoting Poland v. Arizona, 476 U.S. 147, 156, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986)). b. Refusal To Suppress Confession Allen argues that the district court erred in refusing to suppress the confession he gave to police on the morning of his arrest. Allen’s primary assertion is that officers made no effort to comply with his request for counsel, and thus any statements made to the police after his request, including his confession, should have been suppressed because they were coerced in violation of the Fifth Amendment. The government counters that Allen’s admission was voluntarily made after a knowing and intelligent waiver of his Fifth Amendment rights. We first briefly recite the facts surrounding Allen’s arrest, interrogation, and confession, based on the magistrate judge’s findings which were adopted by the district court. (See Allen App., Vol. I at 114-80,192-93.) Allen was arrested at approximately 2:00 a.m. on the morning following the day of the bank robbery and was read his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Around 3:00 a.m. Allen was placed in an interrogation room, handcuffed to the table, advised again of his Miranda rights, and treated for his burns and injuries. Sometime between 3:00 a.m. and 4:00 a.m., an FBI agent began questioning Allen after advising him, for the third time that morning, of his Miranda rights. Allen agreed to provide blood, hair, and saliva samples and then asked for counsel to be appointed to assist him. At that point, the questioning immediately ended. Allen was offered food and drink, which he declined, and officers fulfilled Allen’s request for a towel for his eyes and that the lights be turned off. At approximately 8:00 a.m., a detective reminded Allen of his agreement earlier that morning to provide the blood, hair, and saliva samples, and asked Allen if, in light of his request for counsel, he still wished to provide the samples. Allen agreed to provide the samples and verified his decision in writing. Around 10:00 a.m., a detective asked Allen if he was willing to appear in a lineup. After being informed of his right to have counsel present at the lineup, Allen agreed to appear in the lineup without the presence of counsel. After the lineup was finished, detectives informed Allen of the results of the lineup— that three out of four eyewitnesses placed him at the scene of the crime the previous day — at which point Allen asked to speak with Lieutenant Henderson, an officer Allen knew from an earlier case. Prior to confessing to Henderson, Allen was reminded of his earlier request for counsel and, again advised of his Miranda rights. Allen stated that he understood his right to counsel and that he wanted to talk to Henderson without counsel present. Allen then set up the ground rules for the discussion, including no written or signed statements and no video or tape recording, and then confessed to participating in the previous day’s armed bank robbery. On appeal, Allen does not challenge the district court’s factual findings but rather the legal conclusion to be drawn from the facts, which we review de novo. See United States v. Looking, 156 F.3d 803, 809 (8th Cir.1998). There is no doubt that Allen asserted his right to counsel shortly after custodial interrogation began and that counsel was not present at the time of his confession. Thus, we must decide whether Allen validly waived his previously invoked right to counsel. Waivers of counsel must be voluntary and must constitute a knowing and intelligent relinquishment of a known right. See Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). This requires consideration of the particular facts and circumstances surrounding each case. Id. Under the Fifth Amendment, once an individual expresses a desire to deal with the police through counsel, the authorities may not subject him to further interrogation until counsel has been made available to him, unless the accused validly waives his right by initiating further communication with the police. Id. at 484-85, 101 S.Ct. 1880. Interrogation includes express questioning or its functional equivalent, and the Supreme Court has further defined functional equivalent as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Determining whether particular statements or practices amount to interrogation depends on the circumstances of each case, particularly whether the statements are objectively and reasonably likely to result in incriminating responses by the suspect, as well as the nature of the police statements and the context in which they are given. See United States v. Payne, 954 F.2d 199, 202-03 (4th Cir.), cert. denied, 503 U.S. 988, 112 S.Ct. 1680, 118 L.Ed.2d 396 (1992). See also United States v. Jackson, 189 F.3d 502, 510-11 (7th Cir.), cert. denied, 528 U.S. 979, 120 S.Ct. 432, 145 L.Ed.2d 338 (1999). We turn now to the particular circumstances surrounding Allen’s request for counsel, alleged waiver, and confession. First, although Allen had earlier invoked his right to counsel, we hold that informing Allen of the results of the lineup did not amount to the functional equivalent of interrogation for purposes of the Fifth Amendment. It was a simple description of the status of the ongoing investigation which, according to the government, is a routine practice for suspects in custody in this particular jurisdiction. More importantly, it was not designed to, nor was it reasonably likely to, elicit an incriminating response from Allen. This was a statement of fact and not a plea to conscience. See Innis, 446 U.S. at 294-95, 302-03, 100 S.Ct. 1682. Rather, the officer simply described the results of the lineup, unaccompanied by any threats or other compelling pressure. See Payne, 954 F.2d at 202 (stating that “mere declaratory descriptions of incriminating evidence do not invariably constitute interrogation”). Informing a suspect that he has been identified in a lineup contributes to the intelligent exercise of his judgment and may likely make firm his resolve to refuse to talk to the police without counsel. Id. Moreover, keeping a suspect informed of the progress of the investigation and the status of the charges against him should be encouraged rather than discouraged, so long as the communication is truthful, and is not designed, nor is it likely to elicit, an incriminating response. On these facts, therefore, we conclude that the officer’s statement to Allen explaining the results of the lineup did not constitute interrogation. After resolving the interrogation issue, we have little difficulty determining that Allen’s subsequent self-initiated request to speak to Lieutenant Henderson amounted to a valid waiver of his right to counsel. Allen clearly initiated the request to speak with Lieutenant Henderson and knew full well his right to counsel and the consequences of foregoing that right. He had been informed of his right on prior, unrelated occasions and had indicated that he understood them. In addition to being given Miranda warnings four times earlier that morning and actually invoking his right to counsel after one of the warnings (which is strong evidence that Allen understood his rights), Allen was reminded of his request for counsel and given another explanation of his Fifth Amendment rights just prior to his confession. Moreover, Allen even set up the ground rules for his confession. We therefore conclude that Allen’s waiver of his right to counsel was valid because it was knowing and intelligent, voluntarily given, and initiated by Allen, and therefore the district court did not err in denying Allen’s motion to suppress the confession. See Holman v. Kemna, 212 F.3d 413, 418-21 (8th Cir.) (holding ultimately that there was no Edwards violation and that the waiver of counsel was valid because Holman did not confess until the next day and the totality of the circumstances showed that the confession was voluntary and knowing and intelligent), cert. denied, — U.S. -, 121 S.Ct. 587, 148 L.Ed.2d 502 (2000). See also United States v. Williams, 136 F.3d 547, 552-53 (8th Cir.1998) (holding admissible suspect’s statement to police after being informed that he had been identified in a lineup, which the court assumed without deciding was interrogation for purposes of the appeal, because the statements were voluntarily made without any coercion and came after the suspect was given and validly waived his Miranda rights), cert. denied, 526 U.S. 1003, 119 S.Ct. 1139, 143 L.Ed.2d 207 (1999). Finally, the fact that officers did not find counsel for Allen immediately after his request does not automatically result in a violation of his right to counsel. The officers scrupulously honored his right to remain silent and his invocation of the right to counsel by not interrogating him after he invoked these rights until Allen volunteered his confession. Miranda condemns the use of psychological ploys and staged lineups as attempts to elicit a confession, but not all statements obtained by the police are the product of interrogations. See Innis, 446 U.S. at 299, 100 S.Ct. 1682. The length of time that elapses between a request for counsel and when counsel is actually supplied is simply one factor among many to be considered when determining whether a suspect’s waiver was voluntarily given, and we disagree with Allen that the approximately seven hours that elapsed between his request for counsel and his voluntary confession, when viewed in light of all the facts that took place early that morning, resulted in an involuntary or improperly coerced confession under the Fifth Amendment. See United States v. McClinton, 982 F.2d 278, 282 (8th Cir.1992) (explaining that “[t]he appropriate test for determining the voluntariness of a confession is whether, in light of the totality of the circumstances, pressures exerted upon the suspect have overborne his will”) (internal quotations and citations omitted). c. Double Jeopardy Men argues that Ms multiple sentences of life in prison and the death penalty for the same underlying offense violate his right to be free from double jeopardy. Men waived this issue by failing to preserve it for appeal, however, because he did not raise this argument in the district court prior to trial. See Fed. R.Crim.P. 12(b)(2) (requiring that defenses and objections based on defects in an indictment be raised before trial or they are waived); United States v. Prescott, 42 F.3d 1165, 1167 (8th Cir.1994) (holding that failure to raise pretrial objection to alleged duplicitous counts in the indictment constitutes waiver of the defense); United States v. Shephard, 4 F.3d 647, 650 (8th Cir.1993) (holding that Fed.R.Crim.P. 12(b)(2) requires that challenges based on multiplicitous counts in an indictment and related double-jeopardy problems be raised before trial or they are waived). Reviewing for plain error, we find none. See United States v. Sickinger, 179 F.3d 1091, 1092-93 (8th Cir.1999) (reviewing a double jeopardy claim for plain error even though it was not raised in the district court); United States v. Jackson, 155 F.3d 942, 947 (8th Cir.1998) (same). In a single trial where separate and consecutive sentences are imposed for the same underlying circumstances, the Double Jeopardy Clause does no more than prevent a sentencing court from prescribing greater punishment than a legislature intended. See Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). In the present case then, imposition of multiple punishments for the same underlying circumstances does not violate the Constitution as long as Congress intended it. See Alber-naz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Thus, we first consider whether the two statutes under which Men was convicted and sentenced prohibit the same offense, and if so, whether there is a clear indication that Congress in fact intended multiple punishments for that offense. See Hunter, 459 U.S. at 367, 103 S.Ct. 673. If the offenses are not the same, and absent clear contrary legislative intent, there is no double jeopardy violation. See id. The Supreme Court has consistently used the test from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as the initial starting point for determining legislative intent. See Albernaz, 450 U.S. at 345 n. 3, 101 S.Ct. 1137 (explaining that “the established test for determining whether two offenses are the ‘same offense’ is the rule set forth in Blockburger ”). Under Blockburger, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or one, is whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. 180. Examining the two statutes at issue, it is clear from the face of 18 U.S.C. §§ 2113(a) and (e) (Count I) and 18 U.S.C. §§ 924(c)(1) and (j)(l) (Count II) that Count II requires proof of two facts which Count I does not — namely, that a firearm was used or carried during the commission of a violent crime and that a murder occurred by use of the firearm. The more difficult question is whether Count I requires proof of a different fact than Count II. It is not exactly clear how predicate offenses are to be treated for purposes of Blockbwrger. There is some indication from the Supreme Court that Blockburger is simply a rule of statutory construction which is neither intended nor designed to apply to the particular facts of a case. See Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) (explaining that if each offense requires proof of a fact the other does not, the Blockburger test is satisfied notwithstanding a substantial overlap in the proof offered to establish the crimes); Blockburger, 284 U.S. at 304, 52 S.Ct. 180 (finding that although both sections of the narcotics statute were violated by one sale, two offenses were committed because each section required proof of a fact the other did not). Looking solely at the elements of the offenses at issue here, Count I arguably is not the same offense as Count II because Count II does not require proof of a taking of bank property by force or violence or intimidation, but rather only proof of some underlying crime of violence which could be armed robbery or any other violent felony. On the other hand, the Supreme Court has applied Blockburger by considering the nature of the underlying felony in a felony-murder indictment rather than based only on the elements of the statutes at issue. See Whalen v. United States, 445 U.S. 684, 694-95, 100 S.Ct. 1432, 63 L.Ed.2d 715(1980) (finding that rape and killing in the course of a rape did not pass muster under the Blockburger test because rape was a lesser included offense). Under this interpretation of Blockburger, predicate offenses which form the basis of other statutory offenses would always fail the Blockburger test. In the present case, the underlying bank robbery satisfies the “crime of violence” element of §§ 924(c) and (j). By definition, therefore, there is no fact that must be proved in § 2113 that is different from the elements required to be proved for conviction under §§ 924(c) and (j). In light of these conflicting views of how to apply the Blockburger test to two statutes where one can be a predicate offense for the other, we think it best to err on the side of leniency by finding that the Block-burger test has not been satisfied. However, we still must consider the ultimately dispositive question of whether Congress clearly intended to impose cumulative sentences for simultaneous violations of each of the statutes. See Hunter, 459 U.S. at 368, 103 S.Ct. 673 (reasoning that simply because two criminal statutes may proscribe the same conduct under the Block-burger test does not mean double jeopardy precludes cumulative punishment because courts cannot negate clearly expressed legislative intent). We have repeatedly held that multiple prosecutions and cumulative sentences for bank robbery under § 2113 and for using a firearm pursuant to § 924(c) are clearly intended by Congress and thus permissible. See, e.g., United States v. McQuiston, 998 F.2d 627, 629 (8th Cir.1993) (upholding defendant’s sentence of 300 months for four armed robberies in violation of § 2113 and an additional four consecutive sentences of 120 months each for violating § 924(c) during the course of each of those robberies). Section 924(c) explicitly states that its punishment is to be imposed “in addition to the punishment provided for such crime of violence.” 18 U.S.C. § 924(c)(1) (1994). See also id. (“nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence ... in which the firearm was used or carried”). This language leaves no doubt that Congress intended to impose multiple, cumulative punishments under § 924(e). Allen argues that § 924(j) should be construed independently of § 924(c) because it does not contain the same “in addition to” language, the legislative history suggests Congress only intended to authorize the death penalty for violation of § 924(j) if the death penalty was not already authorized for the underlying violent offense, and any ambiguity must be resolved in favor of a defendant based on the rule of lenity. We respectfully reject Allen’s contentions. First, § 924(j) expressly incorporates § 924(c) and requires a violation of § 924(c) prior to imposition of the penalties set forth in § 9240'). Thus, § 9240) cannot be read independently from the context of the punishment scheme set out in § 924(c). Although § 9240) does not explicitly contain the same express mandatory cumulative punishment language as found in § 924(c), it incorporates § 924(c) by reference without disclaiming the cumulative punishment scheme which is so clearly set out in § 924(c). Second, when read in context of the criminal scheme set forth in § 924(c), we think § 9240) is fairly interpreted as an additional aggravating punishment for the scheme already set out in § 924(c). We reach this conclusion because of § 9240')’s explicit reference to § 924(c) and because each subsection of the statute is designed for the same purpose — to impose steeper penalties on those criminals who use firearms when engaging in crimes of violence. Moreover, Allen’s proposed interpretation of § 924(j) would lead to the odd result that a defendant convicted under § 924(c) is subject to an additional consecutive sentence only in situations that do not result in a death caused by use of the firearm. We think it unlikely that Congress, which clearly intended to impose additional cumulative punishments for using firearms during violent crimes in cases where no murder occurs, would turn around and not intend to impose cumulative punishments in cases where there are actual murder victims. Third, §§ 2113(a) and (e) and §§ 924(c) and (j) were clearly designed for different purposes: the armed robbery statute was designed to punish those who take money from banks by force or violence, whatever the means, and the firearm statute was designed to punish those who use or carry firearms during violent crimes, whatever the underlying crime. We therefore conclude, notwithstanding our assumption of the likely failure of the two statutes to pass the Blockburger test, that Congress fully and clearly intended to permit cumulative punishments for violations of § 2113 and § 924(j). See United States v. Kragness, 830 F.2d 842, 864 (8th Cir.1987) (holding that Congress intended to allow multiple punishments for RICO conspiracies and conspiracies to commit the underlying predicate offense even though the offenses were the same under the Blockburger test). We also reject Allen’s proposed reliance on the rule of lenity because Congress’s intent is quite clear and not ambiguous. Based on the foregoing reasons, the district court did not commit plain error under the Fifth Amendment’s double jeopardy protections by submitting Counts I and II to the jury or by imposing separate sentences after Allen’s conviction on each count. Allen also argues that his double exposure to a sentence of death for one underlying crime unduly emphasized the death penalty to the jury and impermissi-bly skewed the deliberative process in favor of a death sentence in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fifth Amendment’s due process right to a fair trial. We again respectfully disagree. Even if Allen’s argument is a valid claim under the Eighth Amendment, a matter which we do not reach, we find that Allen has not shown that the scales of justice were skewed in favor of a death sentence. The jury instructions did not unduly emphasize the death sentence option over life in prison, and the instructions made it clear to the jury that they were supposed to evaluate each charged count separately and independently. Given that the jury returned different sentences under each count, there is little doubt the jury followed its instructions. Allen speculates that the reason the jury returned a sentence of death on Count II was that the jury must have been so overwhelmed by having to make two separate weighings of all the mitigating and aggravating circumstances such that the mitigation evidence must not have survived the second weighing. A more plausible and principled explanation for the jury’s decision on Count II is that the evidence shows that Allen was far more culpable for the firearm count than the armed bank robbery count. The jury most likely found that Allen was primarily responsiblé for firing the shots that killed Richard Heflin, and, given Holder’s leadership in planning, preparing, and instigating the bank robbery, that Allen was less culpable for committing the bank robbery. Thus, we find little evidence to support Allen’s contention that the submission of two separate death-versus-life-in-prison decisions to the jury violated Allen’s constitutional rights. See, e.g., United States v. McVeigh, 153 F.3d 1166, 1176 (10th Cir.1998) (upholding Timothy McVeigh’s eleven sentences of death as a result of his conduct and convictions for the bombing of the Oklahoma City federal building), cert. denied, 526 U.S. 1007, 119 S.Ct. 1148, 143 L.Ed.2d 215 (1999). 3. Alleged Trial and Sentencing Errors Allen asserts that the district court committed numerous errors during the trial, each of which allegedly warrants this court granting him a new trial or a new sentencing. We address each of his contentions in order, and as explained below, conclude that none of the asserted district court errors entitle Allen to a new trial or a new sentencing. a. Denial of Continuance Allen asserts that the district court abused its discretion in denying Allen’s motion for a continuance of the trial after Allen’s mitigation expert quit ten days pri- or to trial with little of his work done. The facts are as follows. The government filed its notice of intent to seek the death penalty on August 8, 1997. Defense counsel hired a mitigation expert in early September. On October 15, Allen’s case was set for trial on February 9, 1998. On January 12, 1998, the original mitigation expert informed defense counsel that he could not fulfill his obligations. Defense counsel hired a new mitigation expert on January 15 who started working on Allen’s mitigation defense on January 16. Allen filed his motion for continuance on January 29, requesting that the trial be delayed for 120 days in order to prepare adequately the mitigation evidence for use during sentencing. The district court denied the motion for a continuance on the grounds that substantial work had been completed on Allen’s mitigation defense and that sufficient time remained to finish preparations. Jury selection began on February 9, trial commenced on February 17, the sentencing began on March 2, and Allen presented his mitigation evidence from March 3 to March 6. We review rulings on requests for continuances under the following standard: District courts are afforded broad discretion when ruling on requests for continuances. Continuances generally are not favored and should be granted only when the party requesting one has shown a compelling reason. We will reverse a district court’s decision to deny a motion for continuance only if the court abused its discretion and the moving party was prejudiced by the denial. United States v. Cotroneo, 89 F.3d 510, 514 (8th Cir.) (citations omitted), cert. denied, 519 U.S. 1018, 117 S.Ct. 533, 136 L.Ed.2d 419 (1996). “Abuse of discretion is determined by looking at the particular circumstances of the case.” United States v. Ware, 890 F.2d 1008, 1010 (8th Cir.1989) (citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)). Our review of the circumstances of this case convinces us that the district court did not abuse its discretion in denying Allen’s request for a continuance. The replacement mitigation expert had worked on Allen’s case for two weeks prior to the continuance request, and at the time the motion for the continuance was filed he had over four weeks left to prepare Allen’s sentencing defense. In addition, the defense never renewed its motion for a continuance at the start of the penalty phase. Thus, the evidence supports the district court’s finding that the defense had sufficient time to prepare an adequate mitiga: tion defense. Furthermore, the defendant has failed to show any specific prejudice resulting from the denial of his request for a continuance. Allen’s mitigation evidence consisted of three days of testimony, totaling over nine hundred pages of transcript, and involved thirty-six witnesses testifying on Allen’s behalf in support of four statutory mitigating factors and twenty-two non-statutory mitigating factors. Allen does not point to any specific mitigation evidence that he was deprived of presenting to the jury due to the district court’s denial of his request for a continuance. See Walls v. Bowersox, 151 F.3d 827, 836 (8th Cir.1998), cert. denied, 526 U.S. 1071, 119 S.Ct. 1468, 143 L.Edüd 552 (1999). In fact, on the basis of the evidence presented, the jurors were able to identify three additional mitigating factors which they considered during deliberations. Allen argues general prejudice on the basis that there was not overwhelming evidence in support of the jury’s decision to sentence Allen to death on Count II, given the jury’s decision not to impose a sentence of death on Count I. We disagree. There was overwhelming evidence that Allen was responsible for firing all or at least most of the shots that killed the security guard, which is more than enough to support the jury’s finding that the aggravating factors outweighed the mitigating factors thus warranting a sentence of death. We therefore need not address the question of whether Allen had a compelling reason for requesting a continuance of the trial (no explanation was ever given for the delay in discovering the nonperformance of the original mitigation expert), because we find neither an abuse of discretion by the district court nor any prejudice as a result. b. Failure to Disclose Upcoming Inconsistent Testimony Allen argues, based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that his due process rights to a fair trial were violated by the government’s failure to disclose that two government eyewitnesses — Betty Thompson and William Green — would testify at trial inconsistently with previous statements attributed to them as contained in FBI reports, and that the district court therefore abused its discretion in denying Allen’s motion for a mistrial or to strike some of the witnesses’ testimony. We will affirm a district court’s decision denying a request for a mistrial unless we find “an abuse of discretion resulting in clear prejudice” to the defendant. United States v. Rhodenizer, 106 F.3d 222, 225 (8th Cir.1997) (internal quotations omitted). See United States v. Wadlington, 233 F.3d 1067, 1077 (8th Cir.2000); see also United States v. Ryan, 153 F.3d 708, 711 (8th Cir.1998)(applying the same standard to denial of motion for new trial based on Brady violation allegations), cert. denied, 526 U.S. 1064, 119 S.Ct. 1454, 143 L.Ed.2d 541 (1999). In order to establish a Brady violation, a defendant must show that the government suppressed exculpatory evidence material either to guilt or punishment. See Ryan, 153 F.3d at 711. Evidence is material under Brady if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. However, materiality is not established through the mere possibility that the suppressed evidence might have influenced the jury. Id. at 712 (internal quotations and citations omitted). We agree with the district court that there has been no Brady violation. First, the witnesses’ expected trial testimony was not Brady evidence because the witnesses testified at trial and the defense was provided with the necessary impeachment evidence (in this case the FBI reports). See United States v. Gonzales, 90 F.3d 1363, 1368 (8th Cir.1996) (noting that Brady is not violated by a delay in disclosing evidence so long as the evidence is disclosed during trial). Second, Allen has not shown that the change in testimony satisfies the element of materiality. The statements of witnesses Thompson and Green were inconsistent only as to the issue of whether the driver or the passenger was carrying the bag of money as the two defendants reentered the van after the robbery. Whether Holder or Allen carried the bag, however, has almost no probative value as to whether Allen was guilty of the charged offenses, and has only some probative value as to who actually shot Heflin, which was relevant to the jury’s sentencing decision. Moreover, the other evidence convincingly showed that Allen actually did most of the shooting. In short, our confidence in the jury’s verdict as a result of any delayed disclosure of the negligibly exculpatory information is not at all undermined, because earlier disclosure of the information would have had no effect on the outcome of the jury’s verdict. Nor do we find any clear prejudice. The prosecutor expressly stated during opening argument that witness Green was going to testify that the driver was carrying the bag, which was contrary to Green’s statement to the FBI. {See Trial Tr., Yol. VI at 52 (“A few moments later [Mr. Green] saw two men run to the van, the driver carrying a bag, both men carrying what looked to him to be long-barreled weapons.”).) Given that there is little doubt that Holder was the driver of the van, the prosecutor’s remarks during his opening statement alerted defense counsel to the inconsistency between witness Green’s prior