Full opinion text
Affirmed by published opinion. Judge WIDENER wrote the opinion of the court, in which Judge NIEMEYER and Judge MICHAEL concurred except as to Part IV. Judge NIEMEYER wrote the opinion in Part IV for the court, in which Judge MICHAEL concurred, and Judge WIDENER wrote a concurring opinion as to Part IV. OPINION WIDENER, Circuit Judge: This is the second time we have reviewed defendant Aquilia Marcivicci Bar-nette’s death sentence. In United States v. Barnette, 211 F.3d 803, 825-26 (4th Cir.2000), we affirmed Barnette’s convictions but vacated his death sentence because the district court erred in excluding the testimony of a defense expert during the sentencing hearing. We remanded the case to the district court for resentencing. 211 F.3d at 826. Upon remand, the district court conducted a sentencing hearing, and a second jury recommended the death sentence. The district court sentenced Barnette to death on August 20, 2002. Barnette appeals from this sentence. We affirm. I. Barnette met Miss Robin Williams in 1994, and they began dating. Miss Williams lived in Roanoke, Virginia, and Barnette resided in Charlotte, North Carolina. After dating for about a year, Miss Williams and Barnette began living together in an apartment in Roanoke. The relationship flourished at first, but Barnette and Miss Williams began to argue over the issue of infidelity. According to a neighbor, Barnette abused Miss Williams, and one of Miss Williams’ friends testified at the sentencing hearing that Miss Williams told her that Barnette had slammed Miss Williams into closet doors at the apartment. The relationship ended in April of 1996 after a fight in which Barnette attempted to choke Miss Williams. Barnette moved out of the apartment and returned to Charlotte. On April 29, 1996, Barnette called Miss Williams on the telephone and berated her over why she had broken up with him. Barnette became enraged when he learned that Miss Williams was at her apartment with a male friend. Barnette borrowed his brother’s car and drove to Roanoke. Along the way, Barnette filled two containers with gasoline and purchased a baseball bat. Barnette drove to Miss Williams’s apartment and parked on a street near the apartment. Barnette took a pair of pliers, the baseball bat, and the containers of gasoline out of the car and walked to Miss Williams’ apartment. Barnette used the pliers to cut the telephone wires at Miss Williams’ apartment. Barnette started screaming at Miss Williams and broke a window in the apartment with a baseball bat. Miss Williams’ male friend, Benjamin Greene, testified that he was awakened by Miss Williams’ screaming on the night of April 30,1996, at some point between midnight and the break of dawn. He could not remember the exact time. Miss Williams attempted to call the police, but the phone line was dead. According to Greene, Barnette smashed the windows of Greene’s car and screamed at Miss Williams, telling her that she was going to die tonight and that he (Barnette) was going to kill her. Sergeant R.S. Kahl of the Roanoke city police department testified that Miss Williams told him that Barnette was screaming “die, bitch, die,” and Barnette testified that he did say “die, bitch, die.” Barnette kicked the door in, but it jammed. Barnette poured gasoline from one of the containers through the door and on a window sill. Barnette set fire to the gasoline and moved away from the apartment. Greene testified that Barnette threw a Molotov cocktail into the apartment. According to Greene, the Molotov cocktail set fire to the living room curtains. Barnette then poured gasoline from the other container onto Greene’s car and set it afire. Barnette testified that he then heard what he believed to be a bullet zip past his ear. He dropped the bat and began running up the road toward his brother’s car. Barnette reached his brother’s car and began to drive away. He stopped to pick up the baseball bat. As Barnette picked up the bat, he could see that the apartment was burning. In the burning apartment, Miss Williams and Greene could not escape through the front door. Instead, they went to Miss Williams’ bedroom on the second floor, knocked out a window and the blinds at that window, and jumped from the second story window. Greene was unhurt after escaping the fire. Miss Williams suffered second-degree burns on her right arm and second- and third-degree burns on her left arm. She underwent painful treatment and rehabilitation at the University of Virginia Health System in Charlottesville. After the arson attack, Miss Williams spoke with Investigator K.O. Hubbard of the Roanoke city police department and identified Barnette as the perpetrator of the crime. Miss Williams gave the police Barnette’s address in Charlotte and a description of the car. The Roanoke police obtained felony warrants against Barnette for two counts of attempted murder and two counts of arson/firebombing. After leaving Miss Williams’ apartment, Barnette drove to Charlotte. Barnette saw his picture on the television news in Charlotte, which reported that he was wanted for a firebombing in Roanoke. Barnette stayed away from his mother’s house in Charlotte and took up residence with his cousin in east Charlotte. Bar-nette did not turn himself in to the police but instead waited for the police to arrest him. On May 20, 1996, Barnette purchased a 12-gauge Stevens shotgun from a pawnshop in Charlotte using Virginia identification with the name of his brother, Mario Vonkeith Barnette. As part of the transaction, Barnette falsely stated on the federal firearms transaction form that he was neither a previously convicted felon nor a fugitive against whom charges were pending. The Stevens shotgun was defective, and Barnette exchanged it for a Winchester semiautomatic shotgun. Barnette hid the shotgun under his bed for a week before he cut off a portion of the shotgun’s barrel and stock to “[m]ake it easier to conceal.” Barnette collected shotgun shells, a crowbar, bolt cutters, and a pen flashlight. Barnette stored these items in a bag that he had used as luggage when he went to see Miss Williams. On the day before the murders, Barnette taped the flashlight to his shotgun and coated the lens with a red marker. On the morning of June 21,1996, Barnette awoke after a night of drinking and, as he testified at the sentencing hearing, he came to the conclusion- that this was the day that he and Miss Williams were going to die. Before midnight on June 21, 1996, Bar-nette collected his shotgun and bag and walked a mile from his mother’s house to the intersection of Billy Graham Parkway and Morris Field Road in Charlotte. Bar-nette testified that he needed to get to Roanoke to see Miss Williams and that he was going commit a carjacking to obtain a vehicle to drive to Roanoke. Barnette threw his bag into the bushes near the intersection, loaded his shotgun, crouched down, and waited. A car came down to the intersection, with the window down and music blaring. Barnette ran to the car, put his shotgun to the window, and ordered the driver out of the vehicle. Barnette directed the driver toward the location of Barnette’s bag. Once into the bushes and woods adjacent to the road, Barnette took the driver’s wallet and then shot and killed the driver. The driver was twenty-two-year-old Donald Lee Allen. Barnette shot Allen multiple times and left Allen’s body in a ditch by the intersection. Barnette took Allen’s blue Honda Prelude and began driving to Roanoke. Barnette drove to Miss Williams’ mother’s house in Roanoke and parked Allen’s car near the house. At morning twilight on June 22, . 1996, Barnette saw Miss Williams come to the front door and let her dog out. Miss Williams’ mother, Mrs. Bertha Williams, then came out to pick up her grandchild from a car that dropped her off outside the house. Barnette then moved Allen’s car to the alleyway behind the house. Barnette got out of the car, removed his shotgun, and walked toward the back door of the house. Barnette moved through a gate in the fence and proceeded to the back of the house where he cut the telephone lines with wire cutters. Barnette moved around to the kitchen door. He'approached the door and tried to open it. After being unable to open the door, Barnette held back the screen door, held the gun with both hands, aimed at the dead bolt, and began firing. Barnette fired three shells into the door. Barnette entered the house 'and saw Miss Williams standing on the front porch holding the screen door open. After seeing Miss Williams, Barnette reloaded the shotgun. Mrs. Williams saw Barnette and told Miss Williams to run. Barnette testified that he did not want to go through Mrs. Williams, and he retreated out the back door of the house. Barnette testified that he knew that Miss Williams ran out by the front gate because he could hear that gate swinging. Barnette also went through the front gate of the fence. After he cleared the gate, Barnette looked for Miss Williams, and he caught sight of her as she came around the back of the duplex. Bar-nette began to chase her. A neighbor, Sonji Hill, heard the commotion and saw Miss Williams fleeing from Mrs. Williams’ house. Miss Williams fell twice as she tried to flee through a yard and over a hill. After she fell the second time in the nearby yard, Barnette grabbed her and began dragging her with his left hand while holding the shotgun in his right hand. Bar-nette tried to drag Miss Williams to the car. Miss Hill called the police, but, as she was talking on the phone on her porch, Barnette pointed his shotgun at her and told her to hang up the phone. Miss Hill hung up her phone and went back inside of her house. Barnette told Miss Williams that he was going to kill her and that he had one shotgun shell for her and one for him. Miss Williams then tried to grab the shotgun from Barnette. As she reached for the shotgun, Barnette pulled back and shot her in her side. Miss Williams lifted her arm up and began to run towards her mother who was coming up the street. As Miss Williams ran toward her mother, Barnette shot Miss Williams in the back. Miss Williams fell right in front of her mother and died a short time later. Bar-nette testified that the reason he did not put the shotgun to his mouth and kill himself at that moment was because he panicked after seeing what the shotgun shells did to Miss Williams. Barnette went to Allen’s car and began to drive. Barnette drove on Interstate 81 South and arrived in Knoxville, Tennessee. In Knoxville, Barnette purchased some duct tape and a hose. Barnette testified that he attempted suicide by placing one end of the hose in the exhaust pipe of Allen’s vehicle and the other end in the window of the car. Barnette did not complete the attempt. Barnette stole a Tennessee license plate and replaced Allen’s South Carolina plate with the Tennessee plate. Barnette left Knoxville and drove back to Charlotte. Barnette abandoned Allen’s car at a shopping center in Charlotte on June 24, 1996. Police officers discovered the vehicle that night. In a nearby dumpster, officers discovered Barnette’s shotgun with the flashlight taped to it and a bag containing black pants, a black cap, a white towel, a garden hose, bolt cutters, and a crowbar. Barnette made his way back to his mother’s house. After meeting with his mother, Barnette prepared to meet agents of the FBI, who arrived at the house after Barnette’s mother telephoned them. Bar-nette was taken to an FBI office and given his Miranda warnings. Barnette confessed to both murders and later rode with agents to the location where he had murdered Allen. Barnette also identified the car that he had stolen from Allen. Bar-nette’s confessions are not at issue in this appeal. II. A grand jury indicted Barnette on 11 criminal charges: 1) interstate domestic violence, in violation of 18 U.S.C. §§ 2261(a) & (b); 2) use of a destructive device, a firebomb, during a crime of violence, in violation of 18 U.S.C. § 924(c)(1); 3) using and carrying fire and explosive materials during a felony, in violation of 18 U.S.C. § 844(h)(1); 4) making a false statement during the purchase of a firearm, in violation of 18 U.S.C. §§ 922(a)(6) & 924; 5) making a firearm by sawing off his shotgun without complying with the provisions of the National Firearms Act, in violation of 26 U.S.C. §§ 5821, 5822, 5861(f) & 5871; 6) possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) & 924; 7) commission of a carjacking that results in death, in violation of 18 U.S.C. § 2119(3); 8) using and carrying a firearm during and in relation to a crime of violence, namely a carjacking, in which death occurs, in violation of 18 U.S.C. §§ 924(c)(1) & (i)2(l); 9) transporting a stolen vehicle in interstate commerce, in violation of 18 U.S.C. § 2312; 10) interstate domestic violence, in violation of 18 U.S.C. §§ 2261(a)(1) & (b)(1); and 11) using and carrying a firearm during and in relation to a crime of violence, namely interstate domestic violence, in which death occurs, in violation of 18 U.S.C. §§ 924(c)(1) & (i)2(l). After a trial in January of 1998, the jury found Barnette guilty on all counts. Barnette, 211 F.3d at 808. The district court held a sentencing hearing, the jury recommended, and the district court imposed, a death sentence on each of the capital counts, Counts Seven, Eight and Eleven. 211 F.3d at 808. The district court also sentenced Barnette to prison on the non-capital counts. Barnette appealed his convictions and his sentence. We affirmed his convictions but vacated his death sentence. 211 F.3d at 826. We remanded the case back to the district court for resentencing as to the capital counts. The district court commenced the sentencing hearing in July; of 2002. The district court seated a new jury. After hearing the evidence presented at this sentencing hearing, the jury returned recommendations for death sentences on Counts Seven, Eight and Eleven. Bar-nette again appeals his death sentences. III. Barnette raises several issues for review. In this appeal, he contends: 1) that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), requires a grand jury, to consider and find statutory aggravating factors to make Barnette eligible for the death penalty under the Federal Death Penalty Act, 18 U.S.C. § 3591 et seq.; 2) that Ring renders the Federal Death Penalty Act unconstitutional; 3) that the district court violated Barnette’s Constitutional rights by excusing a prospective juror who was partial to life imprisonment but could impose a death penalty and by not excusing a prospective juror who was partial to capital punishment and could not say that he could set aside his feelings; 4) that the government’s exercise of peremptory challenges violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); 5) that the government’s victim-impact evidence violated the Federal Death Penalty Act and Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), overruled in part, Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), and denied Barnette his right to a fair and reliable capital sentencing proceeding; 6) that the aggravating factor of “substantial planning and premeditation” was not supported by the evidence and that the district judge erred in answering the jury’s- question concerning this factor; 7) that the aggravating factor of commission of the offense in expectation of the receipt of anything of pecuniary value was not applied properly; 8) that Barnette was sentenced by a juror who had made up his mind about the result in violation of Bar-nette’s right to a fair and reliable capital sentencing, proceeding; 9) that issues previously raised by Barnette and rejected by the district court and this court warrant a reversal of Barnette’s death sentence; and 10) that inflammatory, unreliable, and prejudicial evidence infected the capital sentencing decision, allowing the death sentence to be imposed under the influence of passion, prejudice, or an arbitrary factor, and that the exclusion of rebuttal evidence requires resentencing. We address each issue. IV. NIEMEYER, Circuit Judge, writing for the court on the issue of whether the death sentences are invalid by reason of a constitutionally deficient indictment: For his first argument on appeal, Bar-nette contends that his death sentences are invalid because the indictment “failed to charge any death-eligible offense, and the death sentences rest upon statutory aggravating factors which were not submitted to and found by the grand jury.” Relying in part on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which held that statutory aggravating factors required to render a defendant eligible for the death penalty are the functional equivalents of elements of a greater offense and must therefore be found by the jury, Barnette contends that these functional elements of a capital offense must also be alleged in the indictment. See Jones v. United, States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (“[A]ny 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”); see also United States v. Higgs, 353 F.3d 281, 299 (4th Cir.2003) (holding that because at least one aggravating factor is required by the Federal Death Penalty Act “to render a defendant death-eligible,” the indictment must allege at least “one such aggravating factor”); cf. United States v. Wills, 346 F.3d 476, 501 (4th Cir.2003) (noting that Ring does not require “aggravating factors to be alleged in the indictment”). Accordingly, Barnette asserts that the death penalties imposed against him on Counts 7, 8, and 11 must be vacated. Although Ring itself does not address the requirements "of an indictment, the Ring Court made clear that when a statute requires the finding of an aggravating factor as a condition to imposition of the death penalty, the aggravating factor requirement functions as an element of the offense. Ring, 536 U.S. at 597, 609, 122 S.Ct. 2428; see also Sattazahn v. Pennsylvania, 537 U.S. 101, 111, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) (reiterating Apprendi’s principle that any fact that “increases the maximum punishment that may be imposed on a defendant ... constitutes an element” of the offense). In addition, the Supreme Court has stated clearly that the Fifth and Sixth Amendments require that “any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment.” Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215 (emphasis added). Applying these principles to a prosecution under the Federal Death Penalty Act, we held in Higgs that an indictment for capital murder must contain at least one aggravating factor “[bjecause only one statutory aggravating factor is required under the Act to render a defendant death-eligible.” Higgs, 353 F.3d at 299; cf. Wills, 346 F.3d at 501 (stating that Ring does not require aggravating factors to be alleged in the indictment). In this case brought under the Federal Death Penalty Act, the jury recommended the death penalty on Counts 7, 8, and 11 of the indictment. In recommending the death penalty on Counts 7 and 8, the jury found as a statutory aggravating factor for each that the government had proved beyond a reasonable doubt that Barnette committed the offense “in the expectation of the receipt of something of pecuniary value,” thus justifying the jury’s consideration of the death penalty for those counts. See 18 U.S.C. § 3592(c)(8). Barnette contends, however, that the indictment did not allege that statutory aggravating factor and therefore was deficient. We disagree. Count 7 of the indictment alleges that Barnette with intent to cause death or serious bodily harm, did knowingly, willfully and unlawfully take by force, violence and intimidation, that is, he shot to death and took from the person of Donald Lee Allen, a motor vehicle which had been shipped, transported and received in interstate or foreign commerce, that is, a 1994 Honda Prelude. Donald Lee Allen’s Honda Prelude represented a pecuniary gain to Barnette at least insofar as it provided him with transportation to Roanoke — transportation for which he would otherwise have had to pay. With respect to Count 8, our conclusion is the same, inasmuch as Count 8 explicitly incorporates Count 7. In recommending the death penalty on Count 11, the jury found as a statutory aggravating factor that the government had proven beyond a reasonable doubt that Barnette committed the offense “after substantial planning and premeditation to cause the death of Robin Williams,” thus justifying its consideration of the death penalty on Count 11. See 18 U.S.C. § 3592(c)(9). Although the allegations in Count 11 of the indictment are not as explicit as those in Counts 8 and 9, they nevertheless provide adequate notice to Barnette that guilt was to be grounded on a finding of “substantial planning.” Count 11 alleges that Barnette knowingly used and carried a firearm, that is, á sawed-off Winchester semiautomatic shotgun, during and in relation to a crime of violence, for which he may be prosecuted in a court of the United States, that is the act of inter-' state domestic violence set forth in Count Ten above, and in the course of this violation caused the death of Robin Williams, through the use of a firearm, which killing is a murder as defined in Title 18, United States Code, Section 1111, in that the defendant, with malice aforethought, did unlawfully kill Robin Williams by shooting her with the firearm willfully, deliberately, maliciously, and with premeditation. Count 10, which was explicitly incorporated by reference into Count 11, alleges that Barnette did travel across a state line, that is, did transport himself from Charlotte, North Carolina to Roanoke, Virginia with the intent to injure, harass, and intimidate an intimate partner, Robin Williams, and in the course and as a result of such travel intentionally committed a crime of violence, that is, shot and killed Robin Williams causing bodily injury and death to her. Although the words “substantial planning” are not used in either Count 10 or Count 11, that language must, as a fair construction, be read into the indictment. See Hagner v. United, States, 285 U.S. 427,433, 52 S.Ct. 417, 76 L.Ed. 861 (1932) (holding that an indictment can be upheld if “the necessary facts appear in any form, or by fair construction can be found within the terms of the indictment”). Count 10 alleges that Barnette traveled from Charlotte to Roanoke “with the intent to injure” Williams. The planned trip was, we take notice, a three-hour journey of just under 200 miles. A fair construction of this allegation in the indictment, therefore, leads to the inevitable conclusion that Barnette planned his crime and planned to take the three-hour journey to commit it. “[Substantial planning and premeditation,” as included in the statutory aggravating factor of § 3592(c)(9), means “ ‘a higher degree of planning than would have the words ‘planning and premeditation’ alone — i.e., more than the minimum amount sufficient to commit the offense.’ ” United States v. Jackson, 327 F.3d 273, 301 (4th Cir.2003) (quoting United States v. Tipton, 90 F.3d 861, 896 (4th Cir.1996)). We believe that the allegations in Count 11 that incorporate the interstate domestic violence set forth in Count 10 effectively charge substantial planning and premeditation because the charged conduct included not only the minimum planning necessary to commit the crime but also the planning of a trip of 200 miles to commit it. Such planning, accompanied by the premeditation alleged in the indictment for a violation of 18 U.S.C. § 1111, therefore satisfies us that the indictment sufficiently alleged the statutory aggravating factor of “substantial planning and premeditation.” Moreover, if the statutory aggravating factors were inadequately alleged in the indictment, the deficiency was in any event harmless in the circumstances of this case. First, the indictment provided at least the factual structure from which the aggravating factors could have been found. Second, the government served Barnette with a formal notice of intent to seek the death penalty under 18 U.S.C. § 3593, in which the government listed the statutory aggravating factors that it intended to prove at the sentencing hearing. Accordingly, Barnette knew as to each capital count precisely what the government would seek to prove at his sentencing hearing. He cannot claim, even in the slightest, that the government ambushed his defense by attempting to prove previously unknown statutory aggravating factors at the sentencing hearing. Indeed, Barnette does not claim a lack of adequate notice. Because the indictment provides adequate notice and also can surely be pleaded as a defense of double jeopardy for any subsequent prosecution of the conduct for which he was found guilty in this case, it is not constitutionally deficient. See Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). In sum, we reject Barnette’s argument that the indictment was deficient in failing to allege at least one aggravating factor as necessary to subject him to the death penalty. Alternatively, we conclude that any deficiency in the indictment that may have existed was, in any event, harmless in the circumstances of this case. We concur in the other portions of Judge Widener’s opinion' — Parts I — III and V-XIV — and we concur in the judgment. Judge Michael has indicated that he joins in this opinion and in the judgment. . Barnette was convicted in 1994 in Mecklen-burg County, North Carolina Superior Court for felonious restraint. See N.C. Gen.Stat. § 14-43.3.
WIDENER, Circuit Judge, concurring in the result reached in Part IV: I concur with the holding that the indictment is not so Constitutionally deficient as to merit reversal. While I agree with the result reached by the majority on this issue, I am of opinion that we must follow our circuit precedent in United States v. Wills, 346 F.3d 476, 501 (4th Cir.2003), and that the other reasons relied upon by the majority, while relevant, are additional supporting reasons. Wills is mentioned as a cf. reference in the majority opinion, which depends on Higgs for the contrary view, although Higgs was a subsequent decision to Wills, which, under our recent decision in McMellon v. United States, 387 F.3d 329 (4th Cir.2004)(en banc), is the controlling authority. Without mentioning McMellon in its opinion, the majority follows the reasoning in Judge Niemeyer’s dissenting opinion in McMellon, commencing at p. 353 of that slip opinion, instead of the reasoning of the majority of the en banc court, commencing on p. 332, Part II of the majority opinion, which is: “When there is an irreconcilable conflict between opinions issued by three-judge panels of this court, the first case to decide the issue is the one that must be followed, unless and until it is overruled by this court sitting en banc or by the Supreme Court.” (387 F.3d at 334) (Footnote omitted.) My reasoning follows. While ultimately rejecting Barnette’s argument that the indictment was deficient in failing to allege at least one aggravating factor in order to subject him to the death penalty, the majority nevertheless follows the finding in United States v. Higgs, 353 F.3d 281, 299 (4th Cir.2003), that the indictment must allege at least one aggravating factor because one such aggravating factor is required by the Federal Death Penalty Act “to render a defendant death-eligible.” Higgs at 299. The majority cites the holding in United States v. Wills, 346 F.3d 476, 501 (4th Cir.2003), but fails to note that Wills was decided prior to Higgs and is, thus, the case to be followed on this issue. Barnette contends that his death sentence is invalid under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and the Indictment Clause of the Fifth Amendment because the indictment did not include the statutory aggravating factors that were submitted to the jury. In Ring, the Supreme Court confronted the question of whether the Sixth Amendment, made applicable to the States by the Fourteenth Amendment, requires an aggravating factor in a capital case to be found by a jury or by the judge. 536 U.S. at 597, 122 S.Ct. 2428. As the Court noted, the question was narrow. The defendant, Ring, did not argue that his indictment was infirm. 536 U.S. at 597 n. 4, 122 S.Ct. 2428. Instead, Ring’s claim was limited to the question of whether an aggravating factor which extends punishment beyond the statutory maximum must be found by a judge or by a jury. The Ring Court determined that the jury must make that decision. “Because Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ the Sixth Amendment requires that they be found by a jury.” 536 U.S. at 609, 122 S.Ct. 2428 (quoting Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348). Barnette argues that Ring requires statutory aggravating factors in the Federal Death Penalty Act to be found not only by the sentencing jury but also by the grand jury and included in the indictment. I reject this contention. Ring does not require that the statutory aggravating factors listed in 18 U.S.C. § 3592(c) be included in the indictment. United States v. Wills, 346 F.3d 476 (4th Cir.2003), is a direct decision to this effect. Wills was the first case in which we considered this issue and is controlling. See McMellon v. United States, 387 F.3d 329 (4th Cir.2004) (en banc). In Wills, the jury convicted Wills of kidnapping resulting in death and interstate stalking resulting in death. 346 F.3d at 481; see also 18 U.S.C. §§ 1201(a)(1) & 2261A. Section 1201(a)(1) provides for the death penalty if the kidnapping results in death to the victim. 18 U.S.C. § 1201(a)(1). At the conclusion of the sentencing hearing, the jury recommended a sentence of life imprisonment without parole, and the district court sentenced Wills in accordance with the jury’s recommendation. Wills, 346 F.3d at 487. On appeal, Wills challenged his life sentence on the basis that the indictment failed to charge an offense that made Wills death-eligible. The Wills court rejected this argument. “The claim that the various aggravating factors had to be alleged in the indictment is not required by Ring v. Arizona, which does require, however that they be submitted to the jury, as they were in this case.” 346 F.3d at 501 (internal citation omitted). Thus, Wills received the automatic life sentence under 18 U.S.C. § 1201(a)(1) without reference to the Sentencing Guidelines. As in Wills, the statutory aggravating factors in the instant case were submitted to and found by the sentencing jury. Each statutory aggravating factor was followed on the verdict form and explained by the district court in the jury instructions. The district court submitted two statutory aggravating factors to the jury on each capital count. The district court complied with Ring by submitting the statutory aggravating factors to the jury. See Ring, 536 U.S. at 609, 122 S.Ct. 2428; Wills, 346 F.3d at 501. The indictment tracked the language of the statutes that Barnette was accused of violating, contained the necessary factual elements that must be proven at trial, and was sufficient to bar a later prosecution for the same offenses. The government complied with all of the requirements at the time of the trial to obtain a capital indictment and to pursue a death sentence. Congress has regulated the venue, jurisdiction, and procedure in the federal criminal courts since the Judiciary Act of 1789. See, especially, §§ 29, 30, and 33 of that Act, among others, relating to procedure. In my opinion, the Death Penalty Act of 1994, 18 U.S.C. §§ 3591, et seq., which we examine here, is a valid exercise of Congressional authority. The district judge in this case complied literally and strictly with the Death Penalty Act. The defendant was given notice in the indictment of the crimes with which he was charged. The procedure which Congress prescribed in the Death Penalty Act was followed strictly and to the letter by the district court. In my opinion, the Death Penalty Act prescribing the procedure in death penalty cases was strictly followed, and the judgment of the district court should be upheld. I would not reach out for a Constitutional requirement, as has the majority, in a case such as this, that the procedural method enacted by Congress be added as a Constitutional requirement of an indictment. If the reasoning of the majority be valid, then does not the failure of Congress to require that the necessary death penalty factors be included in the indictment place a cloud upon the statute? I think not, but the majority apparently does. Therefore, I am of opinion that in Part IV the majority has reached the correct result, but has relied on the wrong reason. V. Barnette argues that the Federal Death Penalty Act is unconstitutional under Ring. We review de novo a challenge to the constitutionality of a statute. See United States v. Bostic, 168 F.3d 718, 721 (4th Cir.1999). Initially, we presume that the statute is a valid exercise of congressional power. See INS v. Chadha, 462 U.S. 919, 944, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (“We begin, of course, with the presumption that the challenged statute is valid. Its wisdom is not the concern of the courts; if a challenged action does not violate the Constitution, it must be sustained.”). Barnette claims that the Federal Death Penalty Act treats the aggravating factors required for the death penalty as sentencing factors that are charged by the United States Attorney rather than by the grand jury. Barnette contends that the courts applying the statute cannot comply with both Ring and the Federal Death Penalty Act because that statute does not require the statutory factors, which must be proven, to be included in the indictment, rather they are inserted into the case by the United States Attorney prior to trial. One flaw in Barnette’s reasoning is the assumption that the Federal Death Penalty Act precludes the grand jury from charging aggravating factors in the indictment. A review of the statute itself reveals no language that restricts' the government from submitting aggravating factors to the grand jury. Neither does the legislative history indicate any such intent. And the fact that the government is not so restricted is no indication that such is required. Ring’s holding requires only that such aggravating factors, upon demand, be found by a jury instead of merely by a judge at sentencing. “Congress has the power to proscribe rules of procedure for the federal courts, and has, from the earliest days, exercised that power.” Palermo v. United States, 360 U.S. 343, 353 n. 11, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). As we will develop below, the Federal Death Penalty Act is' nothing more nor less than the action of Congress to insure that the procedure in the federal courts in the prosecution of a case involving the application of the death penalty complies with the Constitution. The statute does not make the application-of its aggravating factors effective only after indictment for the particular factor, and we decline to imply such a requirement into the statute. As noted, the mere fact that the statute may permit an indictment to contain its aggravating factors is no indication that such is required of the indictment. So far as the argument of Barnette may be that he is “charged by the attorney for the government alone, rather than by the grand jury,” Br. p.63, we take that argument as a disagreement with respect to the requirement of § 3593(a) that “[i]f ... the attorney for the government believes that the circumstances of the offense are such that a sentence of death is justified,” he shall give notice setting forth the aggravating factors the government will rely on to justify a sentence of death. If Barnette’s complaint is that it leaves the choice of whether to seek the death penalty in the hands of the United States Attorney, we think that such a decision by Congress is not subject to review. Indeed, we have held that a decision on whether or not to prosecute by the General Counsel of the NLRB, on a subject' of much lesser import, is not subject to reView unless the claim is that the United States Attorney acted in excess of his delegated authority. Associated Builders & Contractors, Inc. v. Irving, 610 F.2d 1221, 1227-28 (4th Cir.1979). In all events, it is our opinion that whether or not to seek’ a death sentence for a person who has committed a crime, especially when the exercise of such discretions is authorized by Act of Congress, as here, is a power of the Executive not subject to judicial review. In construing the validity of a federal statute, the Supreme Court, has explained that “[a] statute must be construed, if fairly possible, so as to- avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.” George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 77 L.Ed. 1265 (1933) (citing United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 60 L.Ed. 1061 (1916)). The House of Representatives’ report on the legislation that became the Federal Death Penalty Act stated that the purpose of the legislation was “to establish Constitutional procedures for the imposition of the Federal death penalty.” H.R.Rep. No. 103-467 (1994). Those procedures must comport with the Supreme Court’s ruling in Gregg v. Georgia, 428 U.S. 163, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), where the Court stated that a death penalty sentencing scheme may satisfy the Constitutional concerns outlined by the Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), if the statute is “carefully drafted” to “ensure[ ] that the sentencing authority is given adequate information and guidance.” Gregg, 428 U.S. at 195, 96 S.Ct. 2909. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of the sentence and provided with standards to guide its use of the information. Gregg, 428 U.S. at 195, 96 S.Ct. 2909. The Federal Death Penalty Act meets this standard, see 18 U.S.C. § 3591 et seq., but it is not the sole statutory capital sentencing scheme which satisfies the Gregg requirements. The Gregg case approved Georgia’s capital sentencing procedures. See Gregg, 428 U.S. at 207, 96 S.Ct. 2909. The Supreme Court also has approved the statutory sentencing schemes of Texas and Florida. See Proffitt v. Florida, 428 U.S. 242, 259-60, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Virginia’s capital sentencing procedure, which differs from the federal Act, but which has aggravating factors similar to those approved in Gregg and Jurek, has also been held to be Constitutional. See Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135, 148-51 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). Accordingly we are of opinion and hold that the Federal Death Penalty Act is valid. We particularly note that the statute requires trial by jury on demand for establishing the aggravating factors which must be found before a death sentence may be imposed. 18 U.S.C. §§ 3591-3593. VI. Barnette contends that the district court removed prospective juror Campbell in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Witherspoon, the Supreme Court held that a death sentence cannot be imposed by a jury chosen by excluding those persons in the venire on the basis that they “voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” 391 U.S. at 522, 88 S.Ct. 1770. The Supreme Court clarified the rules for excluding potential jurors based upon the jurors’ views on capital punishment in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), explaining that the standard for evaluating a potential juror’s views is “whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Witt, 469 U.S. at 424, 105 S.Ct. 844 (quoting Adams v. Texas, 448 U.S. 38, 44, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)). We review the district court’s removal of this venirewoman for abuse of discretion. United States v. Tipton, 90 F.3d 861, 880 (4th Cir.1996). On her jury questionnaire, venirewoman Campbell stated that “I disagree with capital punishment.” At voir dire, she testified that she “wouldn’t say it’s a totally 100 percent disagree [with the death penalty], but I do lean in that direction quite a bit, maybe more than 50 percent, but not necessarily a hundred percent, if that makes sense.” Juror Campbell then explained that she would not have a problem in considering the evidence and rendering a decision within the context of the law. Still later, she reverted back to explaining her views on the death penalty in terms of percentages: I’m not saying 100 percent [against the death penalty]. I felt like in the past, or even maybe now, in my mind it leans, I’ll just say percentagewise, maybe 55 or 60 percent, I don’t 40 percent, I do — -that sort of thing. But not a 100 percent. But I know there’s always exceptions in any situation or, you know, given different forms of evidence. Well, in this case we’re just deciding the sentence anyway. But, you know, there could be a number of factors that could pull the pendulum back the other way. The district court sought to eliminate the ambiguity surrounding Campbell’s statements: THE COURT: Ms. Campbell, I was a little bit unclear about your degree of concern about the death penalty. I think a couple of times you indicated that it was something 55, 45. In other words, you leaned against imposing the death penalty something like 55 percent to 45 percent. Something along those lines. PROSPECTIVE JUROR: Yes. THE COURT: So that’s kind of where you start. There’s going to be a little bit of difference in which of the two penalties you could even consider before you heard any evidence; is that right? PROSPECTIVE JUROR: Right. Under questioning from the defendant’s counsel, Campbell admitted that she was willing to listen to the evidence presented by both sides and consider both the evidence and the possible penalties before making a decision. The government made a motion to excuse Campbell, and the district court granted the motion. Upon objection from Barnette’s counsel, the district court explained its reasoning: I think one has to make a judgment about the overall presentation of the juror. And in that case one is left with the firm conviction that she would not give, as you all have been indicating, a level playing field. And that being the case, she was properly stricken. * * * There were several jurors early in the process who were stricken, not because they didn’t give correct literal answers, if there is such a thing, but because the Court was convinced they could not give the defendant a fair trial. In the case of this last juror, I believe that juror would not do likewise as to the government. It was a combination. She twice came back to the well that in terms of her decision-making faculties, she would tilt in favor of not imposing one of the two options of sentence. We find no abuse of discretion in the district court’s decision to excuse venire-member Campbell. Campbell twice stated that she leaned against imposing the death penalty before even considering the evidence introduced at the sentencing proceeding. Her statements that she would apply the law equally without regard to the punishment options contradicted her earlier statements. In such a situation, precedent dictates that we look to the district court, whose analysis is presumed to be consistent with the standards established in Witherspoon and Witt. See Maynard v. Dixon, 943 F.2d 407, 415 (4th Cir.1991) (“Moreover, it has been established in this court that where the prospective juror’s response, as captured in the transcripts, reflects some ambiguity in the state of mind of the juror, then the determination made by the trial court, based on its eyeing of the juror, is presumed to be consistent with the standard.”) (citing Briley v. Bass, 750 F.2d 1238, 1246-47 (4th Cir.1984)); see also Truesdale v. Moore, 142 F.3d 749, 757 (4th Cir.1998). The district court reached its decision after seeing the juror and hearing her testify. Accordingly, we are of opinion and decide that the district court did not abuse its discretion. Barnette argues that the district court erred when it refused to remove venireman Donaldson. Barnette centers his argument on the holding in Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), that a defendant may challenge for cause any prospective juror who will disregard the evidence presented at trial and the trial court’s instructions and “automatically vote for the death penalty in every case.” 504 U.S. at 729, 112 S.Ct. 2222. We review the district court’s decision to deny Barnette’s motion to excuse Donaldson for abuse of discretion. See Tipton, 90 F.3d at 880. Barnette contends that Donaldson’s testimony during voir dire revealed that Donaldson favored the death penalty and did not have an open mind as to deciding between a sentence of life in prison or death. At voir dire, Donaldson testified in response to the district court’s question about his statement in the jury questionnaire that he “supported the death penalty” by stating that “I [Donaldson] don’t think that’s the right interpretation, at least if I was answering questions the way I intended.” The district court agreed with Donaldson that the questions in the jury questionnaire were confusing and allowed the attorneys on both sides to ask further questions: By the government— Q. And I think the Court asked you [sic] little bit — we had a series of “always” and “never” questions on the questionnaire that were somewhat difficult to understand, although you’ve noted you would never vote to impose the death penalty, I would take that to be a mistake? A. The way I interpreted the question was whether or not you would always vote to impose it. Q. Okay. And what are your thoughts about that? A. And no, I would not always vote. I think it’s too tough to put an absolute on. But it was the general saying I do support it. Q. In this case you haven’t — you’ve heard facts from the court that will give you a factual background but you haven’t heard any evidence of aggravating or mitigating factors at this point. Would you say that at this point in this case you have an open mind about either the death penalty or life imprisonment without release as possible punishments? A. Probably not a hundred percent. Just based on the comments of the Judge and the fact we’re here today. Q. Now, it would be important for you to set aside any opinions you may have formed based [on] that factual basis and to come into this proceeding with an open mind. And we all come into the courtroom with life experiences and opinions, and we don’t ask you not to have any when you come in, but we ask you, if possible, to set aside opinions that you may have formed and wait to make your decision in the case based on the evidence you will hear in the courtroom. Would you be able to do that? A. I think so. Q. And as I sometimes say, the defense and the government want folks to come in here on an even keel, even playing field, not to come in with predetermined viewpoints about things and it would be important for you to be able to do that. Are you saying that you can do that? A. I think I can. By the defense— Q. What do you think of the sentence of life imprisonment without the possibility of release as a punishment for two first degree murders? * * * A. I’m not sure if I’ve got a real opinion on it. You mean in contrast to the other possibility? Again supporting the death penalty, I’m not sure that it’s an adequate punishment. Q. That’s fair enough. You mentioned your approval, you’re [sic] belief in the death penalty, your support for it is based on social issues. Could you elaborate on that, please? A. I guess it’s — I view it as less a punishment for past crime and more as an important deterrent for future ones. By the government— Q. Are you able to consider at this point'having heard none of the evidence both of those options [life in prison and the death penalty]? A. I certainly would make every effort to put any preconceived notions I got today aside to do that. Q. And today you wouldn’t automatically vote one way or the other? A. No. By the defense— Q. You have told Ms. Tompkins [attorney for the government] several times that you would try your best to set aside your feeling that you developed once you heard the fact situation in this case and only know whether you can do that. None of us can tell you. And if you had any concerns or any reservations about your ability to consider both punishments on these facts, this is the time, consistent with your oath as a juror, to tell us that. Do you? A. No, I don’t have any specific concerns. I’ve never been in this exact situation before, so it’s difficult. I can’t say with 100 percent certainty. I’d like to think I could put that aside. Q. And I hope you understand I’m not trying to belabor the point, but there’s still some equivocation there. And that’s very difficult for us of [sic] going into this process selecting a jury with someone who has some reservation, if that’s what it is. I’m not sure that’s what you’re expressing. A. I wouldn’t call it reservation. I believe — I think I can do it. Q. Knowing what you know and feeling the way you feel, do you think you are able to engage in that process and give meaningful consideration to a sentence of life imprisonment without possibility of release? A. Yes, I think so. Q. Do you have any reservations about your ability to do that? A. No, I don’t have any reservations. Despite his initial statements on the jury questionnaire form stating that he favors the death penalty, Donaldson’s testimony at voir dire, under questioning by the attorneys for both the government and the defense, was evidence which tended to show his ability to consider both sentencing options and his lack of reservation about considering either penalty. Whereas Miss Campbell indicated that she would begin the proceeding 55 percent in favor of life imprisonment, Donaldson stated after questioning by defense counsel that he would have no reservation in giving meaningful consideration to the sentence of life imprisonment and would not begin by automatically being in favor of one sentence over the other. Again, in this situation, great deference is due to the district judge who saw Donaldson testify and heard his testimony. See Tipton, 90 F.3d at 880 (upholding the exclusion of potential jurors who “expressed reservations, never retracted, sufficient to warrant the district court’s determination that they would substantially impair the juror’s performance of duty to vote for the death penalty if the evidence and law so dictated”); Briley, 750 F.2d at 1246-47. We are of opinion and decide that the district court did not abuse its discretion in denying Barnette’s motion to excuse venireman Donaldson. VII. Barnette claims that the district court erred in overruling his Batson challenge to the government’s use of peremptory challenges on five black potential jurors. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Under the Batson doctrine, a prosecutor may not exercise a peremptory challenge to a potential juror solely on the basis of the prospective juror’s race or on the assumption that black jurors as a group will be unable impartially to consider the state’s case against a black defendant. 476 U.S. at 89, 106 S.Ct. 1712. In order to demonstrate a Batson violation, a defendant must establish a prima facie case of discrimination using the following three-part test: (1) the defendant is a member of a distinct racial group; (2) the prosecutor has used the challenges to remove from the venire members of the defendant’s race; and (3) other facts and circumstances surrounding the proceeding raise an inference that the prosecutor discriminated in his or her selection of the jury pool. Keel v. French, 162 F.3d 263, 271 (4th Cir.1998). If a defendant establishes a prima facie case, the burden shifts to the prosecutor to provide a non-discriminatory reason for the peremptory challenges used in selecting the jury. 162 F.3d at 271. Once the prosecutor presents the district court with a non-discriminatory reason for using a peremptory challenge, the district court must determine whether the defendant has proven intentional discrimination. 162 F.3d at 271 (citing Batson, 476 U.S. at 97, 106 S.Ct. 1712). We review for clear error a challenge to the district court’s rulings as to whether a challenge was exercised for a racially discriminatory reason. Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.1995). We accord great deference to the district court’s ruling on such a Batson challenge. United States v. Grimmond, 137 F.3d 823, 833 (4th Cir.1998). Barnette, who is black, challenged the government’s use of a peremptory challenge to strike prospective juror Bryson from the jury panel. When the district judge asked the government for its reason for striking the potential juror, the attorney for the government stated that “[i]n this particular juror’s case, on the questionnaire she noted that her personal view of the death penalty wavers; and that she was not sure whether she favored abolishing the death penalty; and marked on the questionnaire that she was uncertain about how she felt on the death penalty. In questioning, she called herself, quote, a straddler. And again, said that she was uncertain about how she felt about the death penalty.” For those reasons, the government sought to strike Mrs. Bryson from the jury. The government’s reason for exercising a peremptory challenge does not need to rise to the level of a challenge for cause; it must be, however, a clear and reasonably specific statement of the reasons for exercising the challenge. United States v. McMillon, 14 F.3d 948, 952 (4th Cir.1994). The district court upheld the government’s peremptory challenge and removed the prospective juror. We find no clear error in this decision. Under Brown v. Dixon, 891 F.2d 490, 497-98, esp. n.15, (4th Cir.1989), the government may use a peremptory challenge to strike a juror who has reservations about capital punishment. Brown teaches that while the government’s reason does not support a challenge for cause under Witherspoon, it can still be used as the basis for a peremptory strike. Brown, 891 F.2d at 497. Brown also applies to another juror who Barnette claims was struck on the basis of her race. The government exercised a peremptory challenge to strike prospective juror R. Sanders on the grounds that she had concerns with the fairness of the death penalty, strong feelings about unfairness of its application because of socioeconomic, race and age factors, and was not sure that she could be fair. The district court concluded that this was a race-neutral reason for exercising the peremptory challenge, and we find no clear error in the district court’s analysis. Under Brown, the government may utilize a peremptory challenge to strike a prospective juror if the prospective juror has expressed reservations about the death penalty, much less the feelings expressed by venirewoman Sanders. Barnette contends that the government used a peremptory challenge to strike prospective juror Moore on the basis of her race. Among the government’s non-discriminatory reasons for striking Moore was that she hesitated before answering a number of questions; in particular, the government stated that “there was a very long hesitation before she could tell me whether the government was on an equal playing field.” The government also stated that it sought to strike Moore because she indicated that she did not know if she would be willing to go against her religious views regarding the death penalty. The district court found these reasons to be race-neutral, and we agree. The district court specifically noted Moore’s “religious bent against the death penalty” as a reason supporting the government’s decision to strike her. We conclude that there was no clear error in this decision. See Batson, 476 U.S. at 89, 106 S.Ct. 1712, noting that peremptory strikes may ordinarily be exercised “ ‘for any reason at all, as long as that reason is related to [the government’s] view concerning the outcome’ of the case to be tried.” And the district court’s decision obviously comes within the reasoning of Brown, n. 15, as we have previously held in this case. Next, Barnette challenges the government’s use of a peremptory strike on prospective juror K. Sanders. As a race-neutral reason for the peremptory strike, the government stated that her responses on her questionnaire revealed a hesitancy in her ability to consider the death penalty and that questioning during voir dire showed Sanders to be non-communicative with the government. The government also noted that Sanders hesitated for a long period before answering a question on her opinion on the death penalty. The district court found these reasons to be non-discriminatory. We agree. See Brown, 891 F.2d at 497-98. The government may exercise a peremptory strike on the basis of several factors, including employment, both past and present, appearance and demeanor of the potential juror, and the absence or presence of apparent prejudice. See United States v. Grandison, 885 F.2d 143, 149 (4th Cir.1989). The government also exercised a peremptory strike to remove prospective juror Blakeney from the jury. Barnette contends that this strike was done on the basis of race. When asked by the district court to state a non-discriminatory reason for striking Blakeney, the government noted that Blakeney had “a great hesitancy in responding to questions,” and that he said, “I don’t want to sentence anyone to death.” The government also explained to the district court that Blakeney indicated on his juror questionnaire that he was uncertain about how he felt about the death penalty. The district court found that the government’s explanation was race-neutral and denied Barnette’s Batson challenge. We find no clear error in the district court’s ruling. Brown establishes that the government may move to strike a potential juror who has reservations about the death penalty. See Brown, 891 F.2d at 497-98. On that basis, the government can exercise a peremptory challenge. See Brown, 891 F.2d at 497. During voir dire, Barnette’s counsel argued that the “cumulative effect” of the government’s use of peremptory strikes against prospective black jurors violated Batson. The district court rejected this argument, which is not repeated on appeal, and we do not disagree with the district court’s ruling. As an apparent extension of this argument, however, Barnette contends, for the first time on appeal, that the government violated Batson by exercising peremptory challenges on prospective black jurors for stated reasons, yet not striking two white venirepersons who made statements that the defendant claims were similar to those made by the prospective black jurors. Two Fourth Circuit cases have addressed this same contention. In Howa