Full opinion text
Affirmed in part, reversed in part, and remanded by published opinion. Judge TRAXLER wrote the opinion, in which Judge KING joined. Judge MICHAEL wrote an opinion dissenting in part and concurring in part. OPINION TRAXLER, Circuit Judge: The United States appeals from the district court’s grant of Jay E. Lentz’s motion for judgment of acquittal on the charge of kidnapping resulting in the death of his ex-wife, Doris Lentz, in violation of the Federal Kidnapping Act, 18 U.S.C.A. § 1201(a)(1) (West 2000). In a separate appeal, the United States challenges the district court’s grant of a new trial under Federal Rule of Criminal Procedure 33 based upon the presence of unadmitted items of evidence in the jury room during deliberations, as well as the district court’s findings that this extraneous evidence reached the jury as a result of intentional actions on the part of Assistant United States Attorney Steven D. Mellin. In a third appeal, AUSA Mellin challenges the district court’s findings regarding his conduct. Lentz has filed a motion to dismiss Mellin’s appeal. For the following reasons, we reverse the district court’s judgment of acquittal, vacate the district court’s factual findings regarding intentional conduct on the part of AUSA Mellin, and affirm the district court’s grant of a new trial. We dismiss the separate appeal of AUSA Mellin as moot, deny the motion to dismiss filed by Lentz as moot, and remand the entire case to a new district court judge for further proceedings. I. Background This case involves the alleged kidnapping of Doris Lentz (“Doris”) by her ex-husband, Jay Lentz (“Lentz”), and her resulting death. Because we are evaluating the propriety of the district court’s grant of a judgment of acquittal to Lentz, we review the evidence in the fight most favorable to the government. Lentz and Doris were married in 1989 and had one child, Julia, who was born in 1991. Lentz was verbally and physically abusive to Doris during the marriage. Acquaintances of Doris testified that they observed bruises on Doris’s body on at least two separate occasions prior to the couple’s separation in 1993. In addition, a Prince George’s County police officer testified that he responded to a domestic violence call on one occasion at the Lentz home and observed bruises on Doris’s arms. Doris, in deposition testimony taken during the divorce proceedings, had also testified that Lentz physically assaulted her on three occasions during the marriage. There was significant' testimony that Doris was afraid of Lentz during the marriage and that this fear did not subside after their separation. When Doris first decided to leave the marital home, she asked her Episcopal priest to be present when she told Lentz of her decision. She eventually moved into an apartment in Arlington, Virginia, that provided security, parked in a controlled-access garage, instructed the apartment management not to allow Lentz to proceed past the lobby area when he came to pick up Julia, and generally made arrangements to exchange custody of Julia in public places so as to avoid being alone with Lentz. As recently as the spring of 1996, Doris asked a friend from her church to accompany her to the marital home in Fort Washington, Maryland, where Lentz had continued to five, to pick up Julia because she was afraid to go alone. And a co-worker of Lentz testified that Lentz had told him in 1996 that he had “kicked in [Doris’s] front door” because she “had made him mad.” J.A. 987. Although the divorce between the parties became final in 1995, a number of child support, child support arrearage, and marital property distribution issues continued to be the subject of highly contested and bitter litigation in the family court. In particular, the marital home had been placed on the market for sale and Lentz and Doris frequently argued about how the proceeds from the sale should be divided. Doris recorded a number of hostile telephone messages and conversations concerning these ongoing issues that were played for the jury’s consideration. In late March 1996, Lentz’s employer received a child support order requiring garnishment of Lentz’s wages. However, Lentz asked his supervisor to postpone processing of the order within the company to give him some additional time. Two co-workers of Lentz testified that Lentz told them at about this same time that he would kill Doris before he let her have custody of their child. On Tuesday, April 16, 1996, Doris met Lentz in the lobby of her apartment building in Arlington, Virginia. Lentz was picking up Julia for a visit with Lentz’s parents in Indiana. Unbeknownst to Lentz, Doris had asked her friend, Jennifer Rigger, to follow Doris into the lobby and witness Doris’s planned attempt to ask Lentz to sign a document pertaining to their ongoing family court litigation. As a result, Rigger witnessed the exchange of Julia and the ensuing conversation concerning Julia’s date of return. Rigger testified that Lentz initially expressed frustration because Doris had only packed one suitcase instead of the two that Lentz had given them. Rigger also testified that Lentz told Doris that Julia would return on Tuesday, April 23, exactly one week later. The evidence indicated that Doris initially believed Lentz would accompany Julia on the trip, and Julia was below the minimum age necessary to fly unaccompanied. However, airline records revealed that Julia flew unaccompanied to Indiana on April 17, under Lentz’s false representation that she met the minimum age requirement. The round-trip ticket that Lentz had reserved on April 16, had a scheduled return date of Friday, April 26. On April 16, Lentz changed the return date to Saturday, April 27. There was also evidence that Doris initially believed that Lentz would return Julia to her on Wednesday, April 24. At noon on Saturday, April 20, however, Lentz left a message on Doris’s answering machine asking to change the meeting from Wednesday to Tuesday evening, April 23, between 7:30 p.m. and 8:00 p.m., and asking that Doris confirm that this was acceptable. On Tuesday, April 23, at about 4:00 p.m., Lentz left the following message for Doris: “Yea Dee, this is, uh, you know, I’m back now ok. It’s Tuesday afternoon about 4:00 p.m.” Doris’s mother, boyfriend, aunt, and friend testified that Doris told each of them she was to pick up Julia at Lentz’s home on the evening of April 23. Doris’s brown day planner indicated that Lentz and Julia would be returning on that date. In addition, Rigger testified that she and Doris talked by telephone after Doris got home that evening and that Doris ended the conversation at approximately 6:50 p.m., telling Rigger that she had to leave to go pick up Julia at Lentz’s home or Lentz would be angry. There was no eyewitness testimony that Doris arrived at Lentz’s home that evening. Telephone records from April 23 indicate that two calls were placed from Lentz’s mother’s residence in Indiana to Lentz’s house in Maryland between 10:00 and 11:00 that evening, but Lentz’s mother does not recall speaking to Lentz. A six-minute telephone call was placed from Lentz’s home to his mother’s home a few minutes after 12 a.m. on April 24. On April 24, at 8:30 a.m., Doris and Lentz were scheduled to appear at a hearing in the family court case. Although scheduled to see Doris two hours later, Lentz left a message on Doris’s answering machine at 6:14 a.m., stating that his mother had rescheduled Julia’s flight and that she would be returning on Thursday, April 25, instead of Saturday, April 27. Lentz appeared at the 8:30 a.m. hearing with his attorney, but left after a short time. Doris’s attorney also appeared, but Doris did not. Lentz appears to have returned to his home, where another telephone call took place between his home and his mother’s home in Indiana. Lentz’s coworker, Sherrie Roske, testified that Lentz arrived at work after noon that day, looking disheveled, with bags under his eyes. In the meantime, Lentz’s parents had changed Julia’s return date from April 27 to April 25 in order to accommodate their need to travel on business elsewhere. At no time, however, was Julia’s ticketed return date scheduled for April 23. On Thursday, April 25, Doris’s co-worker contacted the Arlington County Police to inform them that Doris was missing, and it was soon discovered that the last known plan on Doris’s part was to travel to Lentz’s home on the evening of April 23 to pick up Julia. During his initial interview with the police, Lentz said that he had last spoken to Doris on April 23 between 5 p.m. and 6 p.m., and told her not to come pick up Julia, a conversation that would have preceded the 6:50 p.m. time that Rigger had said Doris ended their conversation to go to Lentz’s home. However, just before midnight on April 28, after the news spread that Doris was last heard from around 7:00 p.m. on April 23, Lentz left a voicemail message with a police investigator stating that he had been mistaken earlier and that he had last spoken to Doris around 6:50 p.m. on April 23. In the meantime, Lentz had spoken to Marilyn Sauder, a babysitter for Julia, who testified that Lentz said he told Doris that Julia would not be returning on the evening of April 23 due to a ticketing mix-up and that she should not come to get her that evening, but that Doris had come anyway. There was no evidence that the airlines ever made a ticketing mistake. On April 28, 1996, Doris’s car was found in a parking lot in Washington, D.C., approximately eight miles from Lentz’s home and on a route between Lentz’s home and that of Doris. The witness who reported the abandoned car stated that she first noticed it in the parking lot on April 24, the morning after Doris was last heard from by anyone, and that the parking lot was a known dumping ground for stolen vehicles. When the police arrived to inspect the vehicle, the doors were unlocked and the keys were on the passenger side floor. Doris’s purse, complete with wallet, money, checks, and credit cards, was in plain view in the car. The driver’s seat was in the position farthest back from the steering wheel, which would have accommodated a tall driver such as Lentz, who is 6 feet tall, but not Doris, who was a little more than five feet tall. The interior of the vehicle and the trunk area were dirty, and there were blood stains on the passenger side of the vehicle. There were also two umbrellas in the back seat, one for an adult and one for a child, and there was evidence that it was raining heavily on the evening of April 23. The floor mats and Julia’s booster seat, however, were missing from the car. Two witnesses who had ridden in Doris’s car the day before her disappearance testified that the interior of the car was completely clean and stain-free and that the booster seat was in the back of the vehicle at that time. They also testified that it was a clear night and there were no umbrellas in the car. Shortly after the car was discovered, blood stains found in the interior were tested at the Virginia Forensic Laboratory and confirmed to match that of Doris. After Lentz was indicted in November 2001, the government sent the blood-stained passenger seat to the Virginia Forensic Laboratory for further DNA analysis, along with a DNA sample from Lentz. According to Robert Scanlon, the forensic scientist who completed the testing, all of the bloodstains contained Doris’s DNA, with the exception of one 3/4 inch stain found on the center of the passenger seat of Doris’s car. Scanlon testified that this sample contained Lentz’s DNA. In addition, Scanlon testified that Lentz could not be eliminated as a possible donor of a sample taken from the recline lever of the passenger seat. Witnesses testified that Doris purchased her vehicle after she and Lentz separated, that he had not had access to her car, and that Doris was too afraid of Lentz to have ever let him in the car with her. It was also discovered that Lentz had left a message with his real estate agent, Diane Ives, on April 22, asking her to remove the lockbox from his home because he wanted to do some interior painting. Ives testified that when she arrived at the home on April 23, she entered the home and noticed a large blue tarp in the foyer but no painting supplies. She removed the lockbox and left. Lentz also requested that his mail delivery be stopped indefinitely, effective April 24. On Saturday, April 27, Ives replaced the lockbox, but Lentz called her and demanded that she remove it again. When she returned to the home, Ives noticed that the blue tarp was gone, but no interior painting had been done, and that a small square on the floor of the carport had been freshly painted a gray color. On Monday, April 29, Ives returned to the house and noticed that the painted area in the carport had more than doubled in size. By May 10, the entire back third of the driveway had been painted gray. The interior was never painted. In addition, two police officers driving by the residence observed Lentz, within several days of the disappearance, washing the floor of the carport with a garden hose. Doris’s mother testified that, during a visit to the home to see Julia in June 1996, she noticed that the carpeting had been replaced or very well-cleaned, the living room sofa was missing, and a matching chair had been moved to where the sofa had been previously placed. Within a few months of Doris’s disappearance, Lentz obtained a court order, retroactive to April 23, suspending his child support payments and the garnishment order. Lentz sold the marital home in late 1996 and moved with Julia to Indiana. Because Doris’s body was never found, the Arlington County investigation into her disappearance and presumed murder ultimately stalled. The federal investigation continued. On April 24, 2001, a federal grand jury returned an indictment against Lentz, charging kidnapping resulting in death in violation of the Federal Kidnapping Act, 18 U.S.C.A. § 1201(a), In July 2003, a jury found Lentz guilty of the kidnapping charge and returned a unanimous verdict of life imprisonment. Shortly thereafter, the district court granted Lentz’s motion for judgment of acquittal, see United States v. Lentz, 275 F.Supp.2d 723, 749 (E.D.Va.2003), and the government filed a notice of appeal. II. Appeal No. 03-15 We first consider the government’s claim that the district court erred in granting Lentz’s motion for judgment of acquittal on the grounds that the evidence was insufficient to support the conviction of kidnapping resulting in death. We review de novo the district court’s judgment of acquittal based upon the insufficiency of the evidence. See United States v. Wilson, 118 F.3d 228, 234 (4th Cir.1997). When addressing a sufficiency challenge, “[w]e must view the evidence in the light most favorable to the government and inquire whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt.” Id.; see United States v. Higgs, 353 F.3d 281, 313 (4th Cir.2003) (holding that a conviction must be sustained if there is “ ‘evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt”) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc)). The jury, not the reviewing court, assesses the credibility of the witnesses and resolves any conflicts in the evidence presented. See Wilson, 118 F.3d at 234; United States v. Arrington, 719 F.2d 701, 704 (4th Cir.1983). “Those functions are reserved for the jury, and if the evidence supports different, reasonable interpretations, the jury decides which interpretation to believe.” Wilson, 118 F.3d at 234 (internal quotation marks omitted). A. The Federal Kidnapping Act Adopted in 1932, the Federal Kidnapping Act (the “Act”) was primarily designed “to assist the states in stamping out [the] growing and sinister menace of kidnapping” where perpetrators transported their victims across state lines in order to frustrate state authorities confined in their investigations by jurisdictional boundaries. Chatwin v. United States, 326 U.S. 455, 463, 66 S.Ct. 233, 90 L.Ed. 198 (1946). As amended, the Act now authorizes the punishment of death or life imprisonment of anyone who unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, ... when ... the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary if the person was alive when the transportation began ..., if the death of any person results. 18 U.S.C.A. § 1201(a)(1). Accordingly, in order to establish a kidnapping resulting in death under section 1201(a)(1), the government was required to prove (1) the jurisdictional component of interstate transportation; (2) that Doris was “unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away;” (3) that Doris “was held for ransom or reward or otherwise;” and (4) that death resulted. Higgs, 353 F.3d at 313; United States v. Wills, 234 F.3d 174, 177 (4th Cir.2000) (Wills I). B. Jurisdiction There is no dispute that the government presented sufficient evidence to establish the jurisdictional component that Doris was “willfully transported in interstate ... commerce.” 18 U.S.C.A. § 1201(a)(1). There is no statutory requirement that a kidnapper “accompany, physically transport, or provide for the physical transportation of the victim” in order to satisfy the “willfully transported” element of section 1201(a)(1). Wills I, 234 F.3d at 178. Rather, it is enough to show that the kidnapper “willfully caused unaccompanied travel over state lines.” Id. at 179. In Wills I, the defendant left a flyer at the victim’s residence in Virginia advertising a job opportunity. The victim—-who had identified the defendant as the person who had previously burglarized his home— contacted the defendant at the District of Columbia cellular telephone number provided and arrangements were made for the victim to travel to Union Station for a job interview. The victim’s abandoned car was found the following day and he was never heard from again. Thus, the evidence supported the conclusion that the defendant had lured the victim into traveling unaccompanied from his home in Virginia to Washington, D.C., by promising a job interview in order to eliminate the victim as an eyewitness to the burglary charged against him. Because the victim crossed state lines unaccompanied by the defendant, the district court dismissed the kidnapping charge on the ground that it failed to satisfy the Act’s jurisdictional component of interstate transportation. On appeal from the dismissal of the charge, we held that jurisdiction exists for purposes of the Act “when a victim, acting because of false pretenses initiated at the instance of the defendant, transports himself across state lines without accompaniment by the alleged perpetrator or an accomplice.” Id. at 176. We explained that [t]he plain language of the Act does not require that the defendant accompany, physically transport, or provide for the physical transportation of the victim. Rather, the Act only requires that the victim “is willfully transported.” If Congress wished to make accompaniment by the defendant over state lines a requirement under the Act, it could easily have written the Act to provide for it. Id. at 178. Here, the jury reasonably concluded that Lentz, by telling Doris that Julia had returned from Indiana and arranging for Doris to pick her up from his home on April 23, willfully caused Doris to be transported across state lines from her home in Virginia to his home in Maryland, thereby satisfying the jurisdictional component of the Act. C. The Substantive Elements The substantive requirements of the statute are that the government prove (1) that Lentz unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away Doris; (2) that Lentz held her “for ransom or reward or otherwise;” and (3) that Doris’s death resulted from those actions. 18 U.S.C.A. § 1201(a). It is this “involuntariness of seizure and detention which is the very essence of the crime of kidnaping.” Chatwin, 326 U.S. at 464, 66 S.Ct. 233; see United States v. Young, 512 F.2d 321, 323 (4th Cir.1975) (noting that “the true elements of the offense are an unlawful seizure and holding”) (internal quotation marks omitted). Here, the government presented sufficient evidence to support the conclusion that Lentz inveigled Doris into traveling from her home to his, thereby satisfying the seizure element of the Act. Cf. United States v. Hughes, 716 F.2d 234, 239 (4th Cir.1983) (holding that “[b]y inducing his victim by misrepresentations to enter his vehicle and to accompany him, and knowing that the victim’s belief as to their purpose and destination is different from his actual illicit purpose, the kidnapper has interfered with, and exercised control over, her actions”). Lentz does not contend otherwise, and also concedes that the evidence was sufficient to support the conclusion that Doris is deceased. Rather, Lentz’s challenge to his kidnapping conviction is narrowly centered upon the claim that there was insufficient evidence from which the jury could reasonably have concluded that Doris was held or otherwise restrained by Lentz “for ransom or reward or otherwise.” 18 U.S.C.A. § 1201(a). It is to that inquiry that we now turn. 1. The Supreme Court has held that “[t]he act of holding a kidnaped person for a proscribed purpose,” as required by the Act, “necessarily implies an unlawful physical or mental restraint for an appreciable period against the person’s will and with a willful intent so to confine the victim.” Chatwin, 326 U.S. at 460, 66 S.Ct. 233 (emphasis added). It implies “an intent to restrain [the victim’s] movements contrary to her wishes.” Id; see United States v. Wills, 346 F.3d 476, 493 (4th Cir.2003) (Wills II) (“To hold means to detain, seize, or confine a person in some manner against that person’s will.”) However, “[i]t is not necessary that the government prove that the holding occurred prior to the transportation in interstate commerce.” Wills II, 346 F.3d at 493. In Chatwin, the Court decided that the victim had not been “held” for purposes of the Act because, even though the victim was mentally-challenged and had been persuaded to stay with the defendants in a plural marriage, the victim had remained free to move about at will. The victim was not “deprived of her liberty, compelled to remain where she did not wish to remain, or compelled to go where she did not wish to go.” Chatwin, 326 U.S. at 460, 66 S.Ct. 233. Nor was there evidence that the defendants “willfully intended through force, fear or deception to confine the girl against her desires.” Id. On the contrary, “she was perfectly free to leave the [defendants] when and if she so desired.” Id. Lentz claims that the evidence in this case was similarly insufficient to prove that Lentz imposed “an unlawful physical or mental restraint for an appreciable period against [Doris’s] will.” Id. Specifically, Lentz argues that, although his inveiglement of Doris and her unaccompanied travel from Virginia to Maryland caused by it satisfies the jurisdictional and seizure components of the statute, it cannot also serve to establish the “holding” element because there was no evidence that Lentz exerted any physical or mental force sufficient to effect a restraint upon her movements during the trip. In other words, Lentz argues that Doris was at all times “perfectly free” to return to her home or otherwise decide not to complete the journey to pick up Julia at his home. Lentz also argues that Doris’s murder upon her arrival at his home (assuming the jury found that this to be supported by the evidence), cannot suffice because a “holding” under the kidnapping statute requires a restraint of the victim beyond that required to accomplish the murder and thére is no evidence that Doris was subjected to any physical restraint beyond that necessary to simply kill her upon her arrival. The government argues to the contrary, contending that Doris was “held” for purposes of the Act in two distinct ways: (1) by deception from the time she was inveigled or deceived into traveling from Virginia to Maryland through the time that she came into Lentz’s presence; and, (2) thereafter through physical force or fear up to and during her murder. As explained below, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences in its favor, we are satisfied that the evidence, though circumstantial, was sufficient to support the-jury’s determination that, upon Doris’s arrival at Lentz’s home, Lentz exerted an unlawful physical or mental restraint for an appreciable period against Doris’s will. 2. At the conclusion of the evidence in this case, the district court instructed the jury that the government was required to prove (1) that Lentz knowingly and willfully inveigled or decoyed Doris, (2) that Doris was held for ransom, reward, or some other benefit that Lentz intended to derive by so holding Doris, (3) that Lentz willfully transported or caused the transportation of Doris in interstate commerce, and (4) that Lentz’s actions resulted in Doris’s death. The court instructed the jury that “[t]o inveigle or decoy a person means to lure or entice or lead a person astray by false representations or promises or other deceitful means” and that “[t]o hold means to detain, seize or confine a person in some manner against that person’s will.” J.A. 1922. In addition, the jury was instructed as follows: [T]he government must prove beyond a reasonable doubt that the defendant held his victim for some benefit and that the defendant willfully transported the victim in interstate commerce. It is not necessary that the government prove that the holding occurred prior to the transportation in interstate commerce. However, the holding must be separate from ... the transportation. J.A.1924. . Later, the jury was informed, in response to its question, that “the defendant himself [would] have to do the actual detaining/holding” of the victim. J.A. 2059A. With regard to the evidence of “holding,” the government produced testimony from the child’s babysitter that Lentz admitted Doris had come to his house on the evening of April 23. Additionally,, the government’s evidence showed that Lentz stopped his mailman from coming to the house and that the realtor’s lockbox was removed to keep unexpected and unwanted visitors from entering the house; that a blue tarp was present in the foyer of the home on the morning of April 23, but with a false pretense by Lentz as to its purpose; that both Doris’s blood and Lentz’s blood were found later in her. car, which witnesses testified was clean and stain-free the evening before and which witnesses testified Doris would never voluntarily have allowed Lentz to enter; and that the sofa had been removed from the home and replaced with its matching chair, all of which taken together provides circumstantial evidence that Doris was brought into Lentz’s home upon her arrival and murdered there. The evidence also sufficiently supported the conclusion that, once Doris arrived at Lentz’s home, Lentz was in the position of employing further means, be it deceit or force, necessary to bring Doris inside the home where he could physically confine her and kill her. From the moment Doris pulled up at Lentz’s home, she was in his company and no longer “perfectly free to leave.” Chatwin, 326 U.S. at 460, 66 S.Ct. 233. Rather, Lentz was then in a position to confine her physically if necessary. See Higgs, 353 F.3d at 313 (rejecting challenge to the “holding” element where the evidence supported the conclusion that the kidnapper “was prepared to confine [his inveigled victims] at gunpoint if necessary”); cf. United States v. Boone, 959 F.2d 1550, 1555 n. 5 (11th Cir.1992) (noting that “[i]nveiglement becomes an unlawful form of kidnapping under the statute when the alleged kidnapper interferes with his victim’s actions, exercising control over his victim through the willingness to use forcible action should his deception fail”). Beyond this, there was also sufficient evidence to support the jury’s conclusion that, once Lentz had lured or forced Doris into his home, he continued to hold her and kill her, wrapped her body in the blue tarp, drove her car into the carport, moved her bleeding body out to the carport and into the front passenger seat of the car, disposed of the body, and abandoned her car in a high-crime neighborhood in Washington, D.C., with keys and wallet in plain view, no doubt hoping that someone would steal the car and be caught in it along with Doris’s wallet and credit cards. It is against this backdrop of evidence that we must determine whether there was a logical and supporting evidentiary basis for the jury to conclude that Doris was “held” by Lentz after she arrived at his house but before the fatal wounds were inflicted. We believe there was. Given the evidence that Doris was extremely fearful of being alone with Lentz out of the public eye and given the evidence that Doris was inside the house when she was killed, the jury could reasonably conclude from circumstantial evidence that after her arrival at the house Lentz either physically forced or lured her inside or otherwise confined her against her will for an appreciable period of time in order to accomplish the purpose of the seizure — her murder and its accompanying benefit to him in the domestic litigation. The defense argues correctly that there is no direct evidence as to exactly what events occurred in the house preceding Doris’s murder. However, the government’s inability to produce direct evidence on this issue is not fatal to its case, because we believe the circumstantial evidence in the case supports the jury’s finding that Lentz himself accomplished “the actual detaining/holding” of the victim against her will, separate and apart from her trip to the house. J.A.2059A. To conclude, the evidence was sufficient for the properly instructed jury to convict Lentz of kidnapping resulting in murder. In applying the instructions given, a reasonable juror could readily have concluded from the evidence that Lentz, after inveigling Doris into traveling across state lines to his home, employed “unlawful physical or mental restraint for an appreciable period against [Doris’s] will and with a willful intent so to confine [her]” inside his home. Chatwin, 326 U.S. at 460, 66 S.Ct. 233. Once Doris arrived at Lentz’s home, Lentz had successfully transported Doris across state lines by his deception and was in the position to complete his plan to confine and kill Doris in private to eliminate any requirement that he split their marital assets, and eliminate any further liability on his part for child support payments. See United States v. Healy, 376 U.S. 75, 81, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964) (holding a victim “for ransom, reward or otherwise ” under § 1201(a) encompasses holding a victim for any reason which is of benefit to the defendant); United States v. Childress, 26 F.3d 498, 503 (4th Cir.1994) (stating that the kidnapping need not be performed for pecuniary gain to satisfy the “ransom or reward or otherwise” element and that it is sufficient if “the defendant acted for any reason which would in any way be of benefit”). Nor does this conclusion conflict with the purposes of the Act, as argued by Lentz, by “federalizing” a state murder case. Lentz’s plan was to cause Doris, through his deceit, to travel beyond the borders of her home state into his home state and then to involve yet another jurisdiction in the investigation by dumping Doris’s blood-stained vehicle and personal effects in the District of Columbia. Cf. Hughes, 716 F.2d at 239 (“The policy justification for the original federal kidnapping statute was to provide federal officials the ‘power to disregard [state] barriers in pursuing’ kidnappers who planned their activities to take the best possible advantage of the limited authority and coordination of state law enforcement agencies.”) (quoting Chatwin, 326 U.S. at 463, 66 S.Ct. 233). According to representations made by the government, the federal investigation and prosecution proceeded precisely because jurisdictional boundaries stifling the state prosecutions had come into play and the circuit case law interpreting the Act, specifically the Wills I case, had opened up the prospect of the federal charge. See Lentz, 275 F.Supp.2d at 748, n. 29 (“They couldn’t charge a homicide in Prince George’s County,” where Lentz resided, and “[t]hey couldn’t charge anything in Arlington. All you ha[d] in Arlington [was] someone being told to come over and get the child. That’s no charge.”). According to the district court, “[u]nlike the classic tragic kidnapping case, ... this case suggests a mysterious intrastate disappearance of Ms. Lentz under suspicious circumstances.” Id. at 748 (emphasis added). On the contrary, the evidence in this case supports the jury’s finding that Doris was held and killed after Lentz tricked her into traveling interstate for the purpose of avoiding further domestic litigation and liabilities on his part. For similar reasons, we reject Lentz’s suggestion that the evidence in this case cannot suffice to establish a “holding” of Doris under the Act because it demonstrates no more than a holding incident to her murder. Compare United States v. Howard, 918 F.2d 1529, 1537 (11th Cir.1991) (reversing conviction for conspiracy to kidnap and attempted kidnapping of a federal agent under § 1201(a)(5) where defendants, during an attempted drug buy, unsuccessfully tried to force the agent into their vehicle because the record was “devoid of evidence to support an inference that [defendants] would have detained [the agent] after stealing his money, and the limited detention inherent in the crime of robbery does not rise to the level of a kidnapping in this case”), with United States v. Etsitty, 130 F.3d 420, 427 (9th Cir.1997) (per curiam) (affirming kidnapping conviction under § 1201(a)(2) of horse-back rider who “roped” a 16-year-old girl on an Indian reservation and rejecting claim that the kidnapping charge was merged into an assault charge because the charges of kidnaping and assault involved different elements and because “a reasonable trier of fact ... could find seizure, holding or detention” and defendant “prevented [the victim] from escaping, in effect seizing or holding her, for a substantial period of time, for the purpose of causing her considerable bodily and emotional harm”). In Chatwin, the Supreme Court instructed that the holding need only be for “an appreciable period” of time. The “holding” or “detention” element is separate and distinct from the “kidnapping” or “seizure” element, but they should not be viewed in a vacuum. In this ease, there was evidence that Doris was seized by inveiglement, transported across state lines by virtue of that inveiglement, and held by Lentz for the purpose of killing her and eliminating the pending custody, support, and marital asset issues. Far from a routine state murder case, it is this type of seizure, interstate transportation, and holding that the Act, as amended, was intended to reach. Cf. Wills II, 346 F.3d at 493 (“ ‘Nothing in the policy [disregard of State borders in pursuit] justifies rewarding the kidnapper simply because he is ingenious enough to conceal his true motive, until he is able to transport ... [his victim] into another jurisdiction.’ ”) (quoting Hughes, 716 F.2d at 239). For the foregoing reasons, we hold that the district court erred in granting Lentz’s motion for acquittal. III. Appeal No. 04-7 We turn now to the government’s appeal of the district court’s decision granting Lentz a new trial based upon the presence of extraneous items of evidence in the jury room during deliberations and the court’s accompanying findings that the extraneous evidence reached the jury as a result of intentional misconduct on the part of AUSA Mellin. A. Background Shortly after the jury returned the kidnapping conviction, three jurors contacted defense counsel and informed them that a brown leather Day Planner (the “brown day planner”) and a black Wisconsin Paralyzed Veterans of America pocket-sized calendar (the “black day planner”) belonging to Doris had been present in the jury room during deliberations. Among other things, the planners contained Doris’s notes concerning Lentz’s harassing and threatening behavior towards Doris and Julia’s day care provider; notes concerning Doris’s efforts to obtain a protective order; names and telephone numbers of police officers and a domestic violence support group; and notes summarizing derogatory statements about Doris made by Lentz to Julia. The black day planner was not marked as an exhibit, but Lentz had offered two photocopied pages from it into evidence during the cross-examination of Doris’s friend, Jennifer Rigger. These pages indicated that Doris had expected Julia to return from her Indiana trip on June 24, 1996, which contradicted Rigger’s testimony that Doris told her that she was picking up Julia at Lentz’s home on the evening of June 23, 1996. The brown day planner was pre-marked Exhibit 648 by the government, but the government only submitted two photocopied pages from it into evidence during its re-direct examination of Rigger. These pages corroborated Rigger’s testimony that Doris had expected Julia to return from her Indiana trip on June 23,1996. On July 25, 2003, Lentz moved to vacate the jury’s verdict, asserting that he had been prejudiced by the presence of the day planners in the jury room during deliberations. • In addition, Lentz asked the district court to “hold an evidentiary hearing to determine whether the facts surrounding the inadmissible materials making their way to the jury dictate that a retrial should be barred” under Oregon v. Kennedy, 456 U.S. 667, 674-75, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). J.A. 3322; see Kennedy, 456 U.S. at 675-76, 102 S.Ct. 2083 (holding that “[pjrosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, ... does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause”). At the conclusion of a motions hearing on August 14, 2003, the district court deferred ruling on Lentz’s motion to set aside the jury verdict based upon the alleged prejudicial effect of the day planners and granted Lentz’s request for an evidentiary hearing. United States Attorney Paul McNulty and Federal Public Defender Frank Dunham were instructed to conduct an inquiry within their respective offices “to ascertain what the facts are concerning the handling of these documents,” J.A. 3561, and to select counsel to present the testimony of the trial attorneys and others who handled the exhibits. The district court indicated that each person who handled the exhibits would be given an opportunity to testify, along with the district court’s own staff who were involved in the gathering of exhibits for submission to the jury. On November 4 and 5, 2003, the district court held the evidentiary hearing into the question of whether there had been intentional misconduct and heard arguments from counsel on whether the jury’s consideration of the unadmitted evidence was sufficiently prejudicial to warrant the grant of a mistrial or new trial under Rule 33. Three jurors, the court’s security officer, the court’s deputy clerk, three defense attorneys, two prosecutors, two government support staffers, an FBI Agent and an Arlington County Police Officer testified at the hearing. On January 29, 2004, the district court issued a memorandum opinion summarizing the testimony and finding that the two day planners had been excluded from evidence but were nonetheless “intentionally submitted to the jury by the Government.” J.A. 2834. The district court placed the blame exclusively upon AUSA Mellin. Among other charges, the district court found that Mellin placed the two day planners with the evidence after counsel and the court clerk sorted the evidence for the jury, and that he did so with the “intent to act outside the Orders of th[e] Court and the confines of the law.” J.A. 2869. The court further concluded that Mellin’s “actions with the day planners suggest that this conduct was not a benign act or negligent error,” but rather a “reckless” and “intentional” act on his part. J.A. 2869. In the order, the district court also found that the “submission [of the evidence] was not benign because it violated [Lentz’s] Sixth Amendment right to confrontation and prevented him from receiving a fair trial,” and that the government had “fail[ed] to meet its burden to prove that the submission was harmless because the evidence bolstered the [g]overnment’s arguments and completely destroyed [Lentz’s] credibility and, therefore, his case.” J.A. 2834. Despite the district court’s findings of intentional misconduct, however, the district court made no ruling pertaining to Lentz’s contention that a retrial should be barred under the double jeopardy clause. Instead, the district court granted a new trial in the event this court reversed the earlier judgment of acquittal. On February 13, 2004, the government filed a notice of appeal from the district court’s order. We first address the evidence and findings regarding intentional misconduct on the part of Mellin and then review the district court’s determination that the jury’s verdict should be set aside based upon the prejudicial effect of the extraneous evidence. B. Intentional Misconduct Findings The following facts, gleaned from the evidentiary hearing conducted by the district court, appear to be undisputed. On the afternoon of June 16, 2002, the jury received its instructions and the parties completed their closing arguments in the guilt phase of Lentz’s trial. The jury was then instructed to return at 10:00 the following morning to begin deliberations. At approximately 9:30 the next morning, the defense team (Michael Lieberman, Frank Salvato, and Judy Clark) and the prosecution team (AUSA Steven Mellin, AUSA Patricia Haynes, and Michael Chellis) met with courtroom deputy clerk Joanna Solomon and court security officer William Scruggs in the courtroom to assemble the admitted trial exhibits and prepare them for transport into the jury room. Also present and assisting in the endeavor at various times were FBI Special Agent Brad Garrett, Arlington County Sergeant John Coale, Information Technologist Tyrone Bowie, and an intern with defense counsel Salvato’s office. After Solomon sorted and reviewed the exhibits with counsel for both sides, the items were turned over to Scruggs to be loaded onto an evidence cart and transported into the jury room. According to the jurors, at some point after they began their deliberations, the black and brown day planners were noticed and reviewed in the jury room, although the earliest any juror recalled seeing the day planners was on the second day of deliberations. By all accounts, the process of sorting and loading the evidence took place among four counsel tables for a period of at least 45 minutes and involved up to twelve people (not counting any persons milling about behind the bar or unnoticed in the well). The precise events occurring during this time period and, in particular, the method by which the two day planners found their way into the jury room, however, have been the subject of much uncertainty and confusion. Solomon, the courtroom deputy clerk, testified that she began her task by checking her exhibit list with counsel for both sides and that the sorting of unadmitted evidence from admitted evidence took place primarily at the back counsel table used by the government. According to Solomon’s list, four pages from the brown day planner and two pages from the black day planner had been admitted into evidence, and it appears that these excerpts were marked as exhibits, placed with the admitted evidence, and taken to the jury. Solomon testified that when sorting the evidence, she “endeavored to look at everything on the [back] table” and that “everything on the back table [was to] be put on the cart to go to the jury.” J.A. 2430. She then turned the evidence over to Scruggs for loading onto the cart. She testified that she did not see either the brown day planner or the black day planner during the process. According to Scruggs, after the evidence was turned over to him by Solomon, his “understanding was that only items that were sitting on the back table on the right hand side ... [were] approved to go back to the jury.” J.A. 2439. Scruggs testified that he was responsible for loading the cart, but that the cart was actually loaded by “a combination of people” helping him. J.A. 2440. Specifically, he testified that Chellis, Agent Garrett, and Sergeant Coale all offered to assist him. Scruggs testified that he saw the brown day planner on the back table with the evidence for the jury at the time the cart was loaded and that he later saw the black day planner with the evidence when he retrieved it from the jury room. In an earlier affidavit, however, Scruggs stated that he had seen both the black and brown day planners “[s]it-ting on the rear table with the items of physical evidence.” J.A. 3525. According to Scruggs’s affidavit: I was in court on August 14, 2003, when Judge Lee determined that these same two diaries that I had seen on the rear table with the other items of physical evidence, had gone to the jury. The books Judge Lee held up in open court on that occasion appeared to be the same two books I saw on the prosecution’s rear table. As I loaded the notebooks on the front table onto the cart, [Garrett, Coale, and Chellis] offered to assist me by loading the items from the rear table onto the cart. At that time, the two diaries were included along with the other items loaded onto the cart. I cannot say which of the three gentlemen actually placed the diaries on the cart or where on the cart they were actually placed ..., but I do remember that they were on the cart. J.A. 3525-26. Scruggs testified at the hearing that [n]o one got near the cart once it was loaded.” J.A. 2459. In sum, Scruggs testified that “when Judge Lee held up the [day planners] in open court and said ... the issue was how did they get back to the jury,” he “knew right then how they had gotten back to the jury”— they were present on the back prosecution table and were loaded along with the items of admitted evidence onto the cart that day. J.A. 2461. Scruggs could not state who placed the day planners with the evidence or which helper loaded the day planners onto the evidence cart, but made no mention of Mellin’s presence in the area at the time or any assistance offered by him. Defense counsel Lieberman, Salvato, and Clark testified that they were also present when the exhibits were assembled for the jury, but did not observe anyone placing the day planners with the admitted evidence or on the evidence cart. According to defense counsel, at one point very early in the process, Mellin sought approval to remove the contents of the brown day planner from its leather cover and to submit the cover with the admitted excerpts from it, but no one checked to see if this was done. According to Clark, after the exhibits were loaded on the cart, “somebody said, well, who wants to inspect the cart now” and Lieberman walked over to the cart, looked it over, and moved some boxes around. J.A. 2471. Lieberman confirmed that he did so, but he did not individually examine every item and he did not recall seeing either day planner on the cart. This testimony appears to be inconsistent with Scruggs’s testimony that “[n]o one got near the cart once it was loaded.” J.A. 2459. Michael Chellis, an attorney employed by the U.S. Attorney’s office, testified that he was charged with the primary responsibility for sorting the government’s exhibits after the trial. Chellis testified that he met with Solomon to review the Clerk’s exhibit list. He testified that Solomon told counsel for both sides that the few items not listed as admitted could be admitted if both sides agreed. In particular, Chellis recalled that the blood evidence was not listed as admitted, but that the parties agreed that it should be loaded on the cart and taken to the jury anyway. Haynes also testified about a similar conversation between counsel and Solomon. Chellis testified that he had placed the black day planner on Mellin’s office chair a few days before closing and that he later saw it on the government’s counsel table in the courtroom. Chellis admitted that he personally placed the brown day planner on the back counsel table, which is consistent with Scruggs’s testimony, but that he did not intend to place it with the admitted items of evidence. After Chellis testified, Solomon was recalled by the government. Solomon initially denied having ever told either side that evidence that was intended to be, but inadvertently not, admitted during the trial could be admitted and sent to the jury by agreement. After retrieving her exhibit list, however, Solomon acknowledged that her list did not have the blood evidence as being used or admitted and did not have the car seat evidence as being admitted. These exhibits were loaded onto the cart and taken to the jury, and it appears that the parties agreed that these exhibits should have been shown as having been used and admitted during the trial. According to Solomon, there was another list that she believed she must have inadvertently discarded, “thinking [she] had everything transferred to one” list. J.A. 2716. There was also undisputed evidence that, after the jury deliberations had concluded, Solomon had mistakenly returned a borrowed CD player to the AUSA’s office with an original CD exhibit in it. For his part, AUSA Mellin testified that he last remembered seeing the brown day planner during closing arguments the night before the evidence was submitted to the jury. He testified that he arrived at the courtroom with AUSA Haynes the next morning and had a conversation with defense counsel about the brown day planner early during the process of sorting the evidence. He did not recall, however, asking to insert the photocopied pages in the brown leather binder in lieu of its entire contents or having it in his hand at the time of the conversation. With regard to the black day planner, Mellin also did not exclude the possibility that it was in the courtroom that morning, although he testified that he was not aware of it being there and last remembers specifically seeing it several days before closing arguments. Based upon the testimony and evidence presented, the district court made a number of findings and conclusions regarding the “responsibility” of the people involved in the trial process for the extraneous evidence reaching the jury. The district court attributed no responsibility to the court clerk or court security officer and no responsibility to any member of the defense team. Rather, the district court attributed sole responsibility for the erroneous submission to Mellin and found that the submission was the result of intentional misconduct on his part. Specifically, the court found that “Mellin [personally] placed the two day planners with the evidence for the jury,” and that “[h]e did this after the lawyers and court clerk had prepared all of the admitted evidence for the jury.” J.A. 2867. According to the district court’s view of the evidence, after all of the lawyers and the courtroom clerk completed their review of the evidence, Mr. Mellin placed the unadmit-ted day planners in the evidence box. The unmarked black day planner, inadmissible evidence, did not emerge from the clear blue sky, and land in the jury room. Mr. Mellin had the black day planner last and was well aware it was inadmissible. Similarly, Mr. Mellin’s submission of the whole brown day planner to the jury was an intentional act. Mr. Mellin, after discussing whether he could send the brown day planner to the jury with defense counsel and acknowledging the Court’s order excluding the whole day planner, inserted the brown day planner in the evidence box as evidence for the jury.... The Court concludes that Mr. Mellin’s testimony indicates much more than a lack of credibility; rather his testimony demonstrates his intent to act outside the Orders of this Court and the confines of the law. In sum, the Court finds that Mr. Mellin’s actions with the day planners suggest that this conduct was not a benign act or negligent error. Rather this action was reckless, and it was intentional. J.A. 2868-69. 1. Standard of Review We review for clear error the district court’s factual findings that AUSA Mellin intentionally placed the day planners with the evidence for the jury. See United States v. Jones, 356 F.3d 529, 533 (4th Cir.2004). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Scrimgeour v. Internal Revenue, 149 F.3d 318, 324 (4th Cir.1998) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). “As an appellate court, we are ‘reluctant to overturn factual findings of the trial court,’ and ‘this is doubly so where the question goes to the demeanor and credibility of witnesses at trial, since the district court is so much better situated to evaluate these matters.’ ” Jones, 356 F.3d at 537 (quoting United States v. D’Anjou, 16 F.3d 604, 614 (4th Cir.1994)). “Provided that there are two permissible ways to view the evidence,” such findings “are virtually unre-viewable” on appeal. Id. (internal quotation marks omitted). Although we have the utmost respect for factual findings made by a district court and, in particular, its credibility determinations, in this instance we are compelled to vacate the district court’s factual finding that Mellin intentionally placed or otherwise ensured that the day planners in their entirety were taken to the jury room along with the admitted exhibits. None of the witnesses observed Mellin or anyone else placing the day planners with the admitted evidence being taken to the jury. Nor did any of the witnesses profess knowledge of any evidence that Mellin or anyone else intentionally slipped the day planners to the jury in order to gain some advantage in the trial. Rather, the district court’s factual finding of misconduct is based solely upon its belief that both day planners had been excluded in a pretrial ruling, that the brown day planner had again been excluded at trial, that Mellin’s responses concerning the whereabouts of the day planners on the day the evidence was sorted were unconvincing, and that Mellin’s demeanor generally indicated that he was not credible on the issue. Having thoroughly reviewed the transcript from the trial and the evidentiary hearing, we are convinced that the district court’s finding of intentional misconduct rests upon several clearly erroneous underlying factual findings. 2. The District Court’s Evidentiary Rulings At the outset of the findings of fact, the district judge stated that “[t]he trial judge’s responsibility is to rule on the admission or exclusion of evidence” and to “rule clearly so that the parties are aware of what evidence conforms to the law.” J.A. 2857. However, the district judge erroneously found that, as a result of a pretrial motion in limine filed by the gov-eminent, he had “issued a seventy-six page definitive opinion where [he had] excluded Doris Lentz’s day planners,” J.A. 2857-58, that he had denied a subsequent motion to reconsider this ruling, and that he had again ruled the brown day planner inadmissible during trial. It is apparent that this erroneous belief regarding his rulings held special importance for the district judge in assigning responsibility for the day planners reaching the jury room. Throughout the findings pertaining to this issue, the district judge frequently referred to what he believed were government attempts to introduce the evidence which had been refused. And, the district court obviously relied upon this erroneous belief in concluding that Mellin placed the day planners with the evidence with the “intent to act outside the Orders of this Court and the confines of the law.” J.A. 2869. Contrary to the district court’s opinion, the seventy-six page pre-trial order did not specifically exclude Doris’s black day planner or brown day planner from evidence. See United States v. Lentz, 282 F.Supp.2d 399, 411-425 (E.D.Va.2002). The district court was never presented with a motion to admit either of the day planners into evidence in their entirety. Although the district court’s pretrial ruling rejected evidence similar to that contained within the day planners, see id at 423-24, the motion itself only sought a pretrial ruling regarding those pages of each day planner that were ultimately ruled admissible. Compounding this error, the district court also erroneously stated that the government had “attempted to persuade me to revise my rulings on this evidence,” and that AUSA “Haynes sought to admit the brown day planner in full despite the clear definitive ruling excluding the full day planner.” J.A. 2858. We can find no such definitive ruling, nor any place in the record where Haynes unsuccessfully sought to admit the brown day planner in its entirety. During her cross-examination of Rigger, Clark had introduced the two pages from the black day planner admitted in the pretrial order that indicated that Julia was scheduled to return on April 24 rather than April 23. On redirect examination, Haynes moved to introduce the two pages from the brown day planner also admitted in the pretrial order that corroborated Rigger’s testimony that Doris was to pick up Julia on April 23. The precise colloquy from the redirect examination was as follows: Ms. Haynes: Your Honor, I’d move in Government’s Exhibit 548, and there is no objection to it. If I can— Ms. Clark: It’s just a two-page section because the whole page is a bigger one. Ms. Haynes: I think later we might try to want to move the rest in. But for now, we’ll just move in these two pages. The Court: Okay. Two pages of 548 will be received. J.A. 599. At the evidentiary hearing, Clark, when asked if she recalled objecting to Haynes’s supposed attempt to admit the entirety of the day planner testified as follows: [Ms. Clark], I do now that you’ve shown me the transcript where I did object. What I did was object to the admission of the entire document rather than just two pages.... [A] [r]ather unintelligible one, but I thought I got the message across. J.A. 2463-64. In our view, if Clark intended to convey that message, she failed to do so. Both the entire brown day planner and the excerpt admitted in the pretrial order were marked by the government as Exhibit 548. Although at first blush it might appear that Haynes was seeking to admit the entirety of Exhibit 548, Clark’s interruption of Haynes’s motion to introduce the evidence actually indicates that Haynes was only attempting to move in the two-page excerpt from the brown day planner in response to Clark’s introduction of the two-page excerpt from the black day planner. Moreover, we cannot fairly interpret Clark’s statement as an objection. At best, it was an interruption that might be viewed as clarification that Exhibit 548