Full opinion text
CARL E. STEWART, Circuit Judge: Defendant-appellant Len Davis appeals his 1996 conviction and 2005 death sentence imposed pursuant to the Federal Death Penalty Act (“FDPA”), 18 U.S.C. §§ 3591-3599. We AFFIRM. I. A. Kim Marie Groves was murdered on October 13, 1994 in New Orleans, Louisiana, through the coordinated efforts of Davis and his co-conspirators Paul Hardy and Damon Causey. Davis, then an officer with the New Orleans Police Department (“NOPD”), exchanged protection for favors with Hardy, then a New Orleans drug dealer. Causey was an associate of both Hardy and Davis. One of Hardy’s favors, at Davis’s request, was to murder Groves. Davis requested the murder because, on or about October 10, 1994, Groves witnessed Davis’s police partner, Sammie Williams, pistol-whip her “nephew,” Nathan Norwood, who lived in the neighborhood. Groves filed a complaint against Davis with the NOPD’s internal affairs office, alleging that Davis engaged in police brutality. Davis learned about the complaint on October 12. The next day, Davis paged Hardy at about 5 p.m. When Hardy called back, he and Davis discussed a plan to kill Groves, with Hardy as the shooter and Davis and Williams taking care of evidence at the crime scene after the murder was committed. Davis arranged to meet Hardy and Causey at the police station to view photos of homicide cases. Davis and Williams then drove to Groves’s neighborhood in their NOPD patrol car and searched for her. Shortly after 7:30 p.m., Davis and Williams picked up Hardy at his home and drove back to Groves’s neighborhood so that Hardy could walk around. After driving Hardy home, Davis and Williams returned to Groves’s neighborhood and searched for her again. Davis became agitated as the evening progressed because Groves had not been killed yet. At about 9:45 p.m., Davis called Hardy to complain; Hardy assured him that the murder would get done. At approximately 10:00 p.m., Davis and Williams spotted Groves near her home. Davis paged Hardy. When Hardy called Davis back almost immediately, Davis described Groves’s appearance. Hardy replied he was “on [his] way.” Williams’s shift ended at that point, and he left Davis with the patrol car. About 45 minutes later, Davis called Hardy again to complain that Hardy had not killed Groves yet, and described Groves’s clothing and location in detail. Hardy, along with Causey and a driver, went to Groves’s neighborhood. At approximately 11:00 p.m., Hardy shot Groves in the head, killing her. At the time he was planning the murder with Hardy and Causey, Davis was unaware that he was the target of an FBI undercover investigation into corruption in the NOPD. That investigation, “Operation Shattered Shield,” involved soliciting NOPD officers to guard what they thought was a warehouse holding illegal drugs for shipment. In connection with this investigation, the FBI conducted surveillance and recorded cellular telephone conversations of Davis and other NOPD officers. B. 1. In December 1994, the Government filed a one-count federal indictment against Davis, Hardy, and Causey, followed by a three-count superseding indictment and a second superseding indictment. In July 1995, pursuant to the FDPA, the Government filed two notices of intent to seek the death penalty for Davis and Hardy, and the FDPA elements in support. See 18 U.S.C. § 3593(a). In August 1995, the third superseding indictment charged each defendant with: (1) conspiracy to deprive Groves of her civil rights while acting under color of state law, including eight overt acts in furtherance of the conspiracy, in violation of 18 U.S.C. § 241; (2) depriving Groves of her civil rights by use of excessive force by shooting her with a firearm, resulting in death, in violation of 18 U.S.C. §§ 242 and 2; and (3) willfully killing Groves to prevent her communications to a law enforcement officer regarding a possible federal crime, in violation of 18 U.S.C. §§ 1512(a)(1)(C) and 2. In April 1996, Davis and his co-defendants were tried jointly before a jury. The evidence included recorded telephone conversations between Davis and Hardy discussing Groves’s complaint and the plan to shoot her. Williams also testified and corroborated much of the recorded conversations. The jury found Davis and Hardy guilty on all three counts, and found Causey guilty on Counts 1 and 2; it could not reach a verdict on Count 3 as to Causey. After the conviction, Davis refused to return to the courtroom and the case proceeded to the sentencing phase in his absence. At the first stage of the sentencing phase, the jury was charged to decide whether an FDPA “death qualifying factor” existed for either Davis or Hardy. See 18 U.S.C. §§ 3592, 3593(d). The jury found that Davis and Hardy intentionally killed Groves after substantial planning and premeditation. Accordingly, the district court conducted a hearing at the second stage of the sentencing phase to determine whether Davis and Hardy should be sentenced to death or to life imprisonment without release. See id. § 3592. The jury selected the death penalty. Davis and Hardy were sentenced to death; Causey, to life imprisonment. 2. All three defendants appealed, citing numerous points of error individually and collectively. We affirmed Causey’s conviction and sentence, and affirmed Davis’s and Hardy’s convictions on Counts 1 and 2. United States v. Causey, 185 F.3d 407, 412-21 (5th Cir.1999), cert. denied, 530 U.S. 1277, 120 S.Ct. 2747, 147 L.Ed.2d 1010 (2000). However, we reversed Davis’s and Hardy’s convictions on Count 3 because of insufficient evidence. Id. at 421-23. We also vacated Davis’s and Hardy’s death sentences as to all three counts because the jury did not make separate recommendations concerning the appropriate penalty for each count of the conviction. Id. at 423. Accordingly, we remanded Davis’s and Hardy’s cases for re-sentencing. Id. S. On remand, the Government again sought the death penalty, notifying Davis and Hardy of the FDPA elements in support. Hardy and Davis moved to prohibit a death penalty re-sentencing based on double jeopardy. The district court denied the motion, refusing “to extrapolate from the Fifth Circuit’s decision [in Causey] a determination that the Government did not prove its case for death with regard to Counts 1 and 2 because the evidence had been insufficient to sustain a conviction on Count 3.” We affirmed the ruling. United States v. Hardy, 34 Fed.Appx. 962 (5th Cir.2002) (per curiam). Davis moved for reconsideration, arguing that the death sentences were precluded by the indictment’s failure to include the requisite specific intent element and statutory aggravating factor under the FDPA. The district court granted Davis’s motion in part in an unpublished order, holding that the indictment was insufficient. The Government appealed. We vacated the district court’s order, holding that failure to include the required elements was harmless constitutional error, and remanded for re-sentencing. United States v. Davis, 380 F.3d 821, 829-30 (5th Cir.2004), reh’g & reh’g en banc denied, 121 Fed.Appx. 59 (5th Cir.2004) (table), cert. denied, 544 U.S. 1034, 125 S.Ct. 2247, 161 L.Ed.2d 1062 (2005). b- Davis’s re-sentencing proceedings began on July 25, 2005 before a jury. During the first stage of the re-sentencing, Davis elected to represent himself with appointed counsel serving as back-up. On August 3, 2005, the jury returned a verdict rendering Davis eligible for the death penalty, finding that he intentionally participated in an act contemplating that Groves would be killed, and did so after substantial planning and premeditation. Thereafter, Davis refused to return to the courtroom for the second stage of the re-sentencing, but permitted his back-up counsel to proceed in his absence. After hearing the Government’s and defense counsel’s evidence, the jury returned a verdict recommending the death penalty, finding that the aggravating factors were proved beyond a reasonable doubt, that no mitigating factors were present, and that the aggravating factors sufficiently outweighed the mitigating factors to justify a death sentence. On August 17, 2005, Davis filed a motion for judgment of acquittal and a new trial. The district court denied the motion on October 20, 2005, because the issues presented had been decided in numerous motions before Davis’s re-sentencing. The district court sentenced Davis to death on October 27, 2005. Davis timely appealed. II. Upon conviction for a homicide, the FDPA provides for a separate, post-conviction penalty proceeding. 18 U.S.C. § 3593(b); see also Jones v. United States, 527 U.S. 373, 407-08, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). In the first, or “eligibility” phase of the proceeding, a jury must unanimously find beyond a reasonable doubt that: (1) the victim’s death resulted from the defendant’s intentional engagement in life-threatening activity; and (2) one or more of the aggravating factors proposed by the Government is present. See 18 U.S.C. §§ 3591(a)(2), 3592(c); Jones, 527 U.S. at 407-08,119 S.Ct. 2090. If the jury returns both findings, the proceeding moves to the second or “selection” phase. See 18 U.S.C. § 3593(e). Here, the jury decides whether the aggravating factors sufficiently outweigh statutory or non-statutory mitigating factors to warrant a death sentence or, absent mitigating factors, whether the aggravators alone warrant that sentence. Id.; see also id. § 3592(a); Jones, 527 U.S. at 408, 119 S.Ct. 2090. “The weighing is not numeric; the perceived significance, not the number, of aggravating and mitigating factors determines the decision.” Jones, 527 U.S. at 408, 119 S.Ct. 2090. While the jury determines aggravating factors unanimously and beyond a reasonable doubt, it determines mitigating factors individually and by “a preponderance of the information.” 18 U.S.C. § 3593(c), (d). In other words, “a mitigating factor may be considered in the jury’s weighing process if any one juror finds the factor proved by a preponderance.” Jones, 527 U.S. at 408, 119 S.Ct. 2090. Based on its consideration of the aggravating and mitigating factors, the jury decides unanimously whether the defendant shall be sentenced to death, to life imprisonment without possibility of release, or some other lesser sentence. 18 U.S.C. § 3593(e). The FDPA further prescribes our review of a death sentence imposed pursuant to its procedures. We may not reverse or vacate a sentence of death “on account of any error which can be harmless, including any erroneous special finding of an aggravating factor, where the Government establishes beyond a reasonable doubt that the error was harmless.” Id. § 3595(c)(2). III. Davis alleges eight points of error in the re-sentencing hearings. We examine his claims in turn. A. In his first claim, Davis challenges the sufficiency of the evidence to support the sentencing jury’s finding that he posed a threat of future dangerousness while imprisoned. During the second or selection phase of Davis’s re-sentencing hearing, the Government presented evidence to prove that Davis posed a threat of future dangerousness while imprisoned, a non-statutory aggravating factor. See 18 U.S.C. § 3592(b) (“The jury ... may consider whether any other aggravating factor for which notice has been given exists.”). First, the Government resubmitted the evidence presented in the first or eligibility phase that proved Davis acted with specific intent and after substantial planning and meditation, resulting in Groves’s death. The testimony and wiretap excerpts from Operation Shattered Shield revealed that Davis’s sole motivation for ordering Groves killed was the complaint she filed against him. Second, the Government presented evidence of Davis’s history of using sophisticated methods to conduct criminal activity. The evidence showed that, besides orchestrating Groves’s murder, Davis routinely used special codes to communicate with Hardy and Causey, and offered to assist them in covering up their criminal activities. Third, the Government presented video surveillance from Operation Shattered Shield. Special Agent Juan Jackson, the undercover FBI agent acting as a drug dealer, testified that Davis was a leader in what he thought was a major drug operation and increased his responsibilities in the operation in a few months’ time span. Williams, Davis’s partner in 1994, also testified that Davis recruited other police officers to guard warehouses of drugs and to escort drug couriers in their deliveries, and that Davis paid the recruits from money received from the undercover FBI agent. Finally, the Government presented instances during Davis’s incarceration in which he talked back to prison guards and was involved in disciplinary infractions. During the mitigation case at the selection phase, defense counsel presented Davis’s incarceration records for the previous eleven years (from his arrest in 1994 to his 2005 re-sentencing). The records showed that Davis had two minor disciplinary incidents for most of his incarceration (possession of an unauthorized newspaper and failure to submit to DNA testing). At the close of the selection phase hearing, the district court charged the following aggravating factor to the jury: “That Mr. Davis poses a threat of future dangerousness to the lives and safety of other persons while imprisoned.” The jury unanimously found that the Government had proven this factor beyond a reasonable doubt. The FDPA requires this court to review whether the evidence supports a special finding of the existence of an aggravating factor. 18 U.S.C. § 3595(c). Accordingly, “[this court] reviews jury findings of aggravating factors by asking whether, after viewing the evidence in a light most favorable to the government, any rational trier of fact could have found the existence of the aggravating circumstance beyond a reasonable doubt.” United States v. Agofsky, 458 F.3d 369, 374 (5th Cir.2006) (citing United States v. Bernard, 299 F.3d 467, 481 (5th Cir.2002)). We have defined future dangerousness as evidence that a defendant is “likely to commit criminal acts of violence in the future that would be a threat to the lives and safety of others.” Bernard, 299 F.3d at 482. In June 2005, the district court granted that part of Davis’s motion which limited this factor to his threat of future dangerousness while he is in a penal institution. Davis asserts that the Government’s evidence amounts to no more than him placing phone calls to protect Hardy’s violent crimes or to recruit others in a drug conspiracy and not to actual acts of violence. “But advancing a different assessment of the evidence or urging conflicting inferences therefrom does not demonstrate a legal inadequacy in the government’s proof.” United States v. Fields, 516 F.3d 923, 943 (10th Cir.2008). Instead, we consider the evidence in a light most favorable to the Government. Id.; see also Agofsky, 458 F.3d at 374. Here, the Government’s evidence supported the theory that Davis’s modus operandi was to direct other persons to commit criminal acts and to inflict violence on other persons. Our review of the record reflects that in Davis’s interactions with associates like Hardy, Causey, and others, Davis gave directions, offered advice, and assisted in his associates’ nefarious activities. His leadership role and ability to influence others — generally positive qualities — became deadly when exercised to further criminal activity. Such a pattern of behavior could easily translate to a penitentiary. See Bernard, 299 F.3d at 482 (concluding that evidence of propensity for orchestrated criminal activity in prison permitted finding of future dangerousness). Davis also places much weight on evidence of his violence-free prison record during the 11 years between his arrest in 1994 and his sentencing in 2005. He is correct that “evidence suggesting that he had been a well-behaved and disciplined prisoner” is “highly relevant” to the jury’s sentencing determination. See Skipper v. South Carolina, 476 U.S. 1, 7 n. 2, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). On these facts, however, length of incarceration without violence is not dispositive to the issue of whether Davis is a threat of future dangerousness while imprisoned. Stated another way, evidence of Davis’s past dangerousness is not negated by non-violent conduct in prison during a time when he is “on display” while the appeal of his death sentence is pending. Viewing the evidence in a light most favorable to the Government, see Agofsky, 458 F.3d at 374, the jury could have found the future dangerousness factor beyond a reasonable doubt. Therefore, we affirm the jury’s finding on the future dangerousness factor. B. In his second claim, Davis argues that the district court committed reversible error when it provided an ex parte response to a jury question during deliberations. At the close of the selection phase, the district court invited objections from counsel regarding the jury instructions. Defense counsel offered correction to a typo but no substantive objections. The court then charged the jury that they must decide whether Davis posed “a threat of future dangerousness to the lives and safety of other persons while imprisoned.” (emphasis added). The special interrogatory on the verdict forms, however, asked whether he posed “a threat of future dangerousness to the lives and safety of other persons in prison.” (emphasis added). During deliberations, the jury sent the following note to the judge: Please clarify which is correct. Count One — Part B states: “... in prison.” On Pg 9 — Issues to be decided states: “... while imprisoned.” The district court judge responded in writing: “I apologize for the different terminology. It’s intended to mean the same thing.” The parties contest whether the district court judge notified trial counsel before responding to the jury’s question. Davis contends that the judge responded without receiving input from counsel. The Government asserts that the lead prosecutors do not recall whether the district court discussed the note with the parties. However, the Government agrees that the judge erred if, in fact, she answered the jury’s question without first consulting counsel for both parties. It is well-settled in this circuit that when a communication is received from the jury, counsel should be informed of its substance and afforded an opportunity to be heard before a supplemental charge is given. United States v. Bieganowski 313 F.3d 264, 293 (5th Cir.2002) (citing United States v. McDuffie, 542 F.2d 236, 241 (5th Cir.1976)); United States v. Sylvester, 143 F.3d 923, 928 (5th Cir.1998) (“Upon receiving the note from the jury, the court should have notified counsel of the message, shared its contents and granted each side the opportunity to be heard.”). Our review of the record comports with Davis’s contention, because there is no evidence that the district court judge notified the parties before answering the jury’s question. Without the notification, Davis and his counsel were unable to “evaluate the propriety or adequacy of the proposed supplemental charge, formulate objections, or suggest additional instructions.” McDuffie, 542 F.2d at 241. Therefore, we hold as a matter of law that the district court committed error when it failed to notify the parties before responding to the jury. However, “[w]e recognize that an error of this kind may, depending on the facts and circumstances of the case, be harmless.” Id.; see also United States v. Hillsman, 480 F.3d 333, 335-36 (5th Cir. 2007); United States v. Hall, 152 F.3d 381, 406 (5th Cir.1998), abrogated on other grounds by United States v. Marbinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). In this context, the error is harmless if the answer is responsive to the question, correctly states the law, and no prejudice results. Sylvester, 143 F.3d at 928. We also determine whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Hall, 152 F.3d at 406 (citing Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)); see also 18 U.S.C. § 3595(c)(2). Davis argues that the response “they were intended to mean the same thing” is non-responsive and incorrect. But the most reasonable reading of the district court’s answer is that the jury should have considered Davis’s threat of future dangerousness while imprisoned or in prison— i.e., that the terms are interchangeable, and the wording discrepancy was a clerical error. The judge’s answer is thus consistent with her prior order dated June 27, 2005, which limited the aggravating factor regarding Davis’s threat of future danger: The Court agrees with Defendant’s contention, however, that this non-statutory aggravating factor must be qualified to indicate to the jury that it should consider Davis’s future dangerousness only within the context of any menace he might present in a penal institution. This qualification is necessary because for the jury the alternative to the death penalty will be an imposition of life imprisonment. See United States v. Gooper, 91 F.Supp.[2d] 90, 111-112 (D.D.C. 2000) (“[Wjhatever violent or criminal capabilities Cooer [sic] has outside the prison walls will have no probative value when ... [he] will spend the rest of his life in prison....”) Davis further argues that the jury may have been confused because “while imprisoned” implied the length of time Davis would be incarcerated (and possibly released), while “in prison” denotes the fact that he would be incarcerated (with no release). Without an opportunity to provide input into the correct answer, he argues, the jury was misled. While we agree that counsel did not have an opportunity to provide input, we disagree that the jury was misled. The jury was aware — from the court’s detailed instructions before and after the selection and penalty phases — that Davis could only be sentenced to a life sentence without the possibility of release, or to death. The verdict form and the jury instructions plainly said so. We presume that the jury follows their instructions. United States v. Millsaps, 157 F.3d 989, 993 (5th Cir. 1998) (citing Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)). Davis thus was not prejudiced by the district court’s error. Under our established precedent, the district court’s failure to notify the parties before replying to the jury’s question was error. Nonetheless, we hold that the facts and circumstances of this case make the error harmless. McDuffie, 542 F.2d at 241. We therefore will not reverse Davis’s sentence on this ground. C. In his third claim, Davis alleges that the prosecution engaged in misconduct by (1) introducing evidence about his and Hardy’s involvement in violence; (2) improperly cross-examining his defense expert; and (3) presenting arguments to the jury about Davis’s and Hardy’s involvement in violence, in violation of his due process rights. Generally, we apply a two-step analysis to claims of prosecutorial misconduct. United States v. Fields, 483 F.3d, 313, 358 (5th Cir.2007), cert. denied, 552 U.S. 1144, 128 S.Ct. 1065, 169 L.Ed.2d 814 (2008). First, we assess whether “the prosecutor made an improper remark.” Id. If so, then we ask whether the defendant was prejudiced. Id. The prejudice step “sets a high bar ... The determinative question is whether the prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict.” Id. (internal citation omitted). We generally look to three factors in deciding whether any misconduct casts serious doubt on the verdict: “(1) the magnitude of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction.” Id. (citing United States v. Mares, 402 F.3d 511, 515 (5th Cir.), cert. denied, 546 U.S. 828, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005)). Because there was no contemporaneous objection to the testimony, the line of cross-examination, or the prosecutor’s arguments, we review each act of alleged misconduct for plain error. United States v. Jackson, 549 F.3d 963, 974-75 (5th Cir. 2008), cert. denied, — U.S. -, 130 S.Ct. 51, 175 L.Ed.2d 43 (2009); Causey, 185 F.3d at 418. To prove plain error, Davis must “show (1) there was error, (2) the error was plain, (3) the error affected his substantial rights, and (4) the error seriously affected the fairness, integrity or public reputation of judicial proceedings.” Jackson, 549 F.3d at 975. 1. To establish Davis’s relationship with Hardy and Hardy’s reputation for violent acts, the Government presented testimony from Williams, Davis’s partner in 1994 and friend since 1990, and Leon Duncan, Davis’s partner before Williams. Davis argues that Williams’s and Duncan’s testimony regarding Hardy’s violence impermissibly suggested that Hardy was a killer and that Davis was somehow involved in the killings. During the first or eligibility phase of the trial, Williams testified that Davis introduced him to Hardy. When asked by the prosecutor, “What did Paul Hardy do?,” Williams replied: “He was known in the Florida project where he resided as a drug dealer and a killer.” Davis, who conducted the cross-examination, and his back-up counsel did not object to these statements. During the second or selection phase, Duncan testified that he was familiar with Hardy because he had handled murder cases in which Hardy was a suspect. Duncan further testified about a conversation that he and Davis had about Hardy during a 1994 cookout at Davis’s house: [PROSECUTOR]: Who got a phone call? [DUNCAN]: Len Davis got on the phone and he told the individual on the phone, yeah, yeah, Pm home, yeah, it’s just me, Dune and Lemmie [Rodgers, another police officer], yeah, just come on over. When I asked him who was that, because I’m thinking it was policemen that he was inviting over since he was having a cookout, I think he’s inviting policemen over. And he said, oh, that’s Paul. I said, Paul, Paul Hardy? He said, Yeah. What the fuck are you doing hanging out with a cold-blooded killer like Paul Hardy? And he said, man, Paul Hardy ain’t never killed nobody that didn’t deserve to die. Who the fuck are you or Paul Hardy to decide who lives or die? And he made the statement, well, Dune, you just don’t understand the game. I said, fuck the game, we talking about people’s lives. And he said, you see, that’s your problem now. Davis’s back-up counsel did not object to these statements. Under the FDPA, information is admissible during the sentencing hearing regardless of its admissibility under the Federal Rules of Evidence, but “may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” 18 U.S.C. § 3593(c). “Therefore, the defendant and the government may introduce any relevant information during the sentencing hearing limited by the caveat that such information be relevant, reliable, and its probative value must outweigh the danger of unfair prejudice.” United States v. Jones, 132 F.3d 232, 241 (5th Cir.1998). “[T]he relaxed evidentiary standard does not impair the reliability or relevance of information at capital sentencing hearings, but helps to accomplish the individualized sentencing required by the constitution.” Id. at 242. In this case, admitting Williams’s and Duncan’s testimony regarding Hardy’s reputation as a killer was not plain error. In 1999, we rejected a similar argument Davis made in his first appeal when he challenged another witness’s testimony regarding Hardy’s drug-related violent acts: Evidence that Davis and Hardy were ... involved in illegal activities that included violent crimes and drug dealing was relevant to prove both opportunity and motive under the Government’s theory of the case, which was that Hardy was willing to execute Groves and Davis was able to order that execution, because of their mutual involvement in these activities, and because of Davis’s status as a police officer. Causey, 185 F.3d at 419. Here, in the eligibility phase, Williams’s testimony was relevant to show that Davis was familiar with Hardy’s criminal activities, maintained a relationship with him, and therefore was able to call upon him as an intermediary to execute Groves. In the selection phase, Duncan’s testimony was relevant to rebut Davis’s mitigation evidence regarding residual doubt as to his innocence. Further, the testimony is reliable because both witnesses testified that they were familiar with Hardy’s reputation from their own interactions with him and with Davis. Finally, the testimony’s probative value in demonstrating Davis’s propensity for violent acts outweighs the danger of prejudice. Jones, 132 F.3d at 241. Admission of the testimony is not sufficient to reverse Davis’s sentence. 2. Davis also challenges the prosecution’s cross-examination of Dr. Thomas Streed, a former police officer and now an applied psychologist, during the second or selection phase of the re-sentencing hearing. Streed was the defense’s only mitigation witness. Defense counsel offered Streed as an expert in police administration, procedures, training, supervision, and administration “with particular emphasis” on “the description and analysis of stress affecting law enforcement officers, and particularly officer-involved use of force cases.” On direct examination, Streed testified based on his review of Davis’s police records from 1988 through his arrest in 1994. Streed described several incidents in which Davis had been assaulted or threatened with violence on the job, and his subsequent behavioral changes including alcohol use and increased internal-affairs complaints brought against him. To establish that Davis had worked in a high-crime area, defense counsel showed Streed two pages of crime statistics, which revealed that the Fifth District, where Davis was assigned after 1989, was a higher crime zone than any other NOPD district and in 1994 had one-third of all the city’s homicides. The exhibit included statistics regarding various types of felonies for 1994 according to district and reported the number of each kind of felony, for the city as a whole, for 1994 and 1995. The document also showed the percentage change for the two years. On cross-examination, the Government questioned Streed regarding his knowledge of Davis’s case, the Fifth District, Operation Shattered Shield, and other people involved in the case. Q. Now, do you believe in coincidences, Dr. Streed? A. In coincidences? Q. Yes. A. Yes, I do. Q. You examined as well as Mr. Davis’ personnel file, crime statistics for New Orleans for the year 1994, did you not? A. Yes, sir. Q. Anything significant that you’re aware of as to the homicide rate, homicide number in 1994? A. Well, other than the fact that it is considerably higher than the other eight districts, no. Q. Actually, it was a record. A. Well, I haven’t seen the, you know, the previous years’ crime statistics, so I’ll accept that, but I don’t know that that’s true. Next, after establishing that Streed was familiar with Causey and Hardy, the prosecutor asked if Streed was aware of a war between Hardy and “Poonie”, another drug dealer in the Florida housing project located in the Fifth District, in 1994. Streed replied that he was not. The prosecutor continued with questions about the population and crime statistics in the Florida project: Q. Dr. Streed, actually do you know which project is the smallest in New Orleans, well, back in 1994 population-wise? A. I can’t recall. Q. Would it surprise you if I said it was the Florida? A. It would be irrelevant to me. Q. Well, back in that record year of homicides back in 1994, the Florida housing project led all other projects with 23 homicides— THE COURT: [Prosecutor], you’re testifying. [PROSECUTOR]: I am asking him if he would be surprised at that. [PROSECUTOR]. Did you research that, Dr. Streed? A. No. THE COURT: [Prosecutor], please try not to testify and give information. I understand what you’re trying to say, but please. [PROSECUTOR]: Back to coincidences now, your Honor. [PROSECUTOR]: The next year, 1995, the Florida only had four homicides. THE COURT: [Prosecutor], please stop testifying in your questions. If you have a question, ask him a question. You can use evidence that’s admissible and been admitted, but please don’t go beyond that. Q. How much investigating did you do, Dr. Streed, apart from the sheer and the bare numbers of the crime stats of 1994; I mean, did you compare things with ’95? A. No, sir. Q. Did you ask about the significance of numbers of homicides in the various projects? A. I am sorry, I don’t think I understand your question. Q. I mean the significance that Paul Hardy and Mr. Poonie had this little war in the Florida project. Did you ever talk to any FBI agent who was investigating street violence for a little bit of background? A. I wasn’t aware that there was a war going on between those two people, so I wouldn’t have investigated it. Defense counsel did not object to any of the prosecutor’s questions. Davis argues that this line of cross-examination implied that he and Hardy were responsible for the crime in the Fifth District. Specifically, Davis believes the prosecutor used his cross-examination of Streed to bring before the jury the unsubstantiated claim that the Florida project had an unusually high number of homicides in 1994 (23 total), and that the number had dropped to only 4 homicides in 1995, “coincidentally” after Hardy and Davis were arrested. The net effect of the prosecutor’s “testifying,” according to Davis, conveyed to the jury that Hardy and Davis were responsible for the difference — i.e., almost 20 homicides in 1994. A prosecutor is allowed to ask questions in cross examination provided he has “some good-faith factual basis for the incidents inquired about.” United States v. Bright, 588 F.2d 504, 512 (5th Cir.1979) (citation omitted), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979). However, “[t]hat does not mean that the basis in fact must be proved as a fact before a good faith inquiry can be made.” United States v. Nixon, 777 F.2d 958, 970 (5th Cir.1985). “[T]he government does not have a duty in every case to introduce the factual predicate for a potentially prejudicial question posed on cross-examination.” United States v. Jungles, 903 F.2d 468, 478 (7th Cir.1990). This principle “receives even more play where there is no contemporaneous objection to the cross-examination.” Id. Here, the prosecutor’s improper statements do not rise to the level of plain error. The prejudicial effect of the prosecutor’s improper “did you know ... ?” questions was tempered significantly when the district court admonished him to refrain from that type of questioning. While the bell could not be unrung — i.e., the jury had already heard the prosecutor’s “testifying” — the judge’s sua sponte admonitions to the prosecutor alerted the jury to the improper nature of the remarks even without defense counsel’s objections or a curative instruction. Cf. United States v. Wicker, 933 F.2d 284, 290 (5th Cir.1991) (no plain error where “not only was there no objection, but also the district court interrupted the prosecutor sua-sponte immediately after these comments were made to remind her that she was making an improper argument” and provided a general cautionary instruction to the jury). Moreover, the general line of questioning — though not the form — was appropriate given the topics introduced in direct examination. Streed testified on direct regarding the effects of violent criminal activity on Davis’s mental and physical health. The defense introduced the crime statistics during direct examination to support the theory that Davis was a product of the violent atmosphere in which he worked, thus opening the door to the Government’s questions on cross-examination. Additionally, the questions about Hardy’s war with Poonie tested Streed’s knowledge of the case. There was a good-faith factual basis for the questioning, because Williams had already testified that Poonie was a dealer in the Florida project who was one of Hardy’s enemies. Moreover, the jury had already heard wiretap excerpts of Davis and Hardy discussing Hardy’s war with Poonie, demonstrating that Davis was aware of Poonie’s and Hardy’s rivalry. Cf. United States v. Johnston, 127 F.3d 380, 393 (5th Cir.1997) (prejudice mitigated by curative instruction and wiretap evidence to corroborate improperly solicited testimony in cross-examination). Further, the Government did not mention Poonie during any other point in the trial, and did not argue about Poonie or his war with Hardy in summation. Accordingly, the prosecutor’s “testifying”, while improper, see Berger v. United States, 295 U.S. 78, 84, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), did not affect Davis’s substantial rights. 8. Finally, Davis argues that the Government’s remarks in summation suggested that Hardy was a killer. At the eligibility phase, the prosecutor opened by telling jurors they would hear how “Davis had developed a particular relationship with Paul Hardy,” a “street assassin to the extent where he protected Hardy.” Then, in summation, the prosecutor used similar language to discuss Hardy while playing some of the wiretap tapes: You know too from the tapes and testimony of Sammie Williams that the defendant is protecting a murder [sic] and dope dealer by the name of Paul Hardy. ... They [Davis and Hardy] are friends. You hear it, they talk about families, girlfriends, they talk about things other than the business of dope and the business of murder. You recall the events of September 30th, 1994, Williams described to you. Williams see [sic] a homicide and what does he do? He calls Davis. And what does Davis, the defendant, do? ... The very first thing he does is call a murderer and dope dealer called Paul Hardy. At the selection phase, the prosecutor again argued that Hardy was a killer by trade, and that Davis had aided and abetted Hardy and his associates in their criminal activities. Among other comments, the prosecutor told jurors that Davis “was basically the Godfather on the street to a hit squad.” The prosecutor also said: “He was protecting Hardy and Causey who were killing people” and referred to Hardy and Causey as Davis’s “murdering, drug-dealing friends.” According to the prosecutor, Davis “made sure the coast was clear so Hardy and Causey can go do drive-bys. He preyed on a community, this community, New Orleans, Louisiana ... that desperately needed, still needs protection from the likes of Davis.” “If anybody kills somebody in the Florida, who is the first one they think of? They think of Paul Hardy.” As with the opening statement, the prosecutor interspersed his comments with excerpts from the wiretap tapes. During rebuttal summation, the prosecution also argued that, “The city of New Orleans had to endure the reign of terror of Len Davis and the murderers he was protecting.” According to this argument, the surveillance recordings showed Davis as an “unrepentant, narcissist killer who is willing to unleash people like Paul Hardy on the citizens of New Orleans and anybody who dared, had the audacity to dare to stand up to Len Davis.” The prosecutor also stated that Davis was a “police officer who routinely not only protected drug dealers and murderers but also actively counseled them on how and when to commit murder and mayhem.” The prosecutor told jurors that Davis deserved no mercy, because he had misused his position as a police officer “not to protect and serve the citizens of the community, but to terrorize them and to victimize them.” The prosecutor argued, “You see, ladies and gentlemen, this crime not only involved one victim, but 500,000 victims, the people of the city of New Orleans. And it was an insult on our entire criminal justice system.” Improper comments by the prosecutor may constitute reversible error when the defendant’s right to a fair trial is substantially affected. Causey, 185 F.3d at 417 (citing United States v. AnchondoSandoval, 910 F.2d 1234, 1237 (5th Cir. 1990)). Whether such error requires reversal depends upon the magnitude of the prejudicial effect, the efficacy of any cautionary instruction and the strength of the evidence of the defendant’s guilt. Id. (citing United States v. Murrah, 888 F.2d 24, 28 (5th Cir.1989)). “The ultimate question before us, however, is not the impropriety of the prosecutor’s remarks but whether these remarks were so inflammatory that they entitle the defendant to a new trial.” United States v. Lowenberg, 853 F.2d 295, 301 (5th Cir.1988). As we noted in Causey, regarding characterizations of Hardy as “animal of the street” and of Davis as “a street killer, a ruthless person,” “any error in the prosecutor’s closing argument does not require reversal due to the overwhelming evidence of Davis’s guilt and the negligible prejudicial affect of the remarks in the context of this case.” Causey, 185 F.3d at 418; see also Fields, 483 F.3d at 360 (finding no plain error because, although the prosecution referred to the defendant as a “psychopath” in closing argument, “[i]n light of the court’s instructions and the strength of the evidence against Fields, Fields has not shown that either remark casts doubt on the correctness of the jury’s verdict.”). Similarly, here, there was ample evidence from which a jury could conclude that Hardy and his crew were involved in killing and that Davis counseled and protected their endeavors. Most of the prosecutor’s comments in the summation referred to Hardy’s involvement in Groves’s murder, and were corroborated by the wiretap tapes. For example, when discussing Davis’s plan of the murder, the prosecutor stated: Hardy’s going to be the executioner and they’re [Davis and Williams] are going to clean it up. How do you know if Sammie Williams is telling you the truth? Well, you know because you hear confirmation or corroboration of his testimony during the conversation between the defendant and his drug dealing, murdering friend, Paul Hardy, on Government’s Exhibit LD-9. As stated in Part III.B., supra, the jury was already aware that Davis and Hardy had been convicted for the murder of Groves, and that Hardy was the actual shooter. Therefore, the prosecutor’s remarks only argued the facts that the jury heard. Further, the district court clearly instructed the jury at the beginning and end of both phases of the re-sentencing hearings that counsel’s arguments are not evidence. Accordingly, Davis’s substantial rights were not affected such that reversal of his sentence is warranted. D. In his fourth claim, Davis complains that the victim-impact testimony and the prosecution’s arguments related to that evidence were erroneous. There was no contemporaneous objection to the victim-impact testimony or the related arguments by the prosecutor, and thus the claims are reviewed for plain error. Jackson, 549 F.3d at 974-75 (testimony); Causey, 185 F.3d at 418-19 (arguments). 1. Before Davis’s re-sentencing, the Government noticed, among other nonstatutory aggravating factors: “Victim impact, evidenced by the fact that the murder of Kim Marie Groves has created harmful emotional distress upon her three children and other members of her family.” This aggravator was later charged to the jury as: “That the death of Ms. Groves created harmful emotional distress upon her daughter.” During the selection phase, the Government elicited sentencing testimony from the victim’s daughter, Jasmine Groves, that Davis did not deserve life imprisonment because he had not “once said” he was “sorry,” in “over 11 years” since the crime. Jasmine read the remarks from a letter she had written to Davis. Prior to the August 2005 re-sentencing, and again after Jasmine’s direct testimony, defense counsel obtained permission from the court to question her about a letter she and her family had sent to the United States Attorney General in June 2005. On cross-examination, Jasmine acknowledged that the letter, signed by her, her two siblings, and her grandparents, had asked the Government not to pursue a capital re-sentencing for Davis but rather to allow him to receive life imprisonment. She testified that the request had been made “[s]o it can be over” and so Davis “could spend the rest of his life thinking about what he did.” On redirect, the prosecutor then asked Jasmine to explain why she had thought a life sentence “would mean things would end.” She answered that she had believed it would mean “no more court, no more nothing.” “But,” she said she had now learned, “he can keep appealing and .keep going through this for the rest of our life [sic].” Defense counsel did not object. The FDPA provides that the Government may introduce as a non-statutory aggravating factor “victim impact evidence” including “oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim’s family, and any other relevant information.” 18 U.S.C. § 3593(a). As the district court held, victim-impact evidence has been upheld as constitutional. United States v. Davis, 912 F.Supp. 938, 947 (E.D.La.1996) (citing Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)); Bernard, 299 F.3d at 477-78 (same). Evidence “about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed [and t]here is no reason to treat such evidence differently than other relevant evidence is treated.” Payne, 501 U.S. at 827, 111 S.Ct. 2597. However, admission of the evidence violates Davis’s due process rights if it “is so unduly prejudicial that it renders the trial fundamentally unfair.” Bernard, 299 F.3d at 477 (citing Payne, 501 U.S. at 825, 111 S.Ct. 2597). Here, the Government permissibly presented testimony from Jasmine regarding the impact of her mother’s death on her family. The letter she read into testimony was part of that impact. The testimony did not render the trial “fundamentally unfair,” as Davis’s counsel was able to cross-examine Jasmine (and to ask leading questions). Moreover, the testimony of a single family member was not sufficient to render the trial unfair, relative to the overwhelming evidence against Davis. See Bernard, 299 F.3d at 479-81 (holding that error in admitting minimal victim impact testimony in which victim’s mother directly addressed defendants did not affect substantial rights in light of the impact on the family); see also Griffith v. Quarterman, 196 Fed.Appx. 237, 245 (5th Cir.2006) (per curiam, unpublished) (in a habeas case, rejecting Due Process challenge to admissibility of victim impact evidence where only one witness (victim’s brother) testified and prosecutor made only passing reference to testimony in closing argument); of. United States v. Rodriguez, 581 F.3d 775, 796-97 (8th Cir.2009) (holding that testimony of six victim-impact witnesses was not overwhelming where witnesses explained the impact of the victim’s murder on their lives and defendant presented mitigation witnesses). The victim-impact testimony here did not violate Davis’s due process rights. 2. In summation at the close of the selection phase, the prosecutor returned to Jasmine’s testimony to argue “the family’s wishes”: “In simple and powerful words, she [Jasmine] told you that life was too good for the defendant and she told you why. He didn’t have the decency to apologize. And he doesn’t care, she said. And she is right. For if the defendant thinks of Kim Groves at all, it is only to ponder how he could have done this murder better. That’s how he thinks of her.” Davis argues that his constitutional privilege against self-incrimination was violated by the italicized remarks, which highlighted his silence (particularly because he was absent from the proceedings). The Fifth Amendment prohibits a prosecutor from commenting on a defendant’s failure to testify, Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), if “the prosecutor’s manifest intent in making the remark must have been to comment on the defendant’s silence, or the character of the remark must have been such that the jury would naturally and necessarily construe it as a comment on the defendant’s silence.” Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir.1999) (citing United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir.1996)). “The prosecutor’s intent is not manifest if there is some other, equally plausible explanation for the remark.” Grosz, 76 F.3d at 1326. As for whether a jury would naturally and necessarily construe a remark as a comment on the defendant’s failure to testify, “the question is not whether the jury possibly or even probably would view the challenged remark in this manner, but whether the jury necessarily would have done so.” Id. (quoting United States v. Collins, 972 F.2d 1385, 1406 (5th Cir. 1992)). In Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), the Supreme Court held that a sentencing court may not draw an adverse inference from a defendant’s silence “in determining the facts of the offense” because to do so “impose[s] an impermissible burden on the exercise of the constitutional right against compelled self-incrimination.” Id. at 330, 119 S.Ct. 1307. Here, the prosecutor restated Jasmine’s testimony that Davis never apologized in the context of discussing the family’s wishes (and how they changed from wanting a life sentence to wanting the death penalty). This plausible explanation makes it debatable as to whether the remarks were intended to comment on Davis’s failure to testify in the sentencing hearing. The fact that Davis was not present during the selection phase when the prosecutor made the remarks, however, could have led the jury to believe that the Government was highlighting Davis’s failure to apologize. However, the cases Davis cites in support of this argument are distinguishable. In Lesko v. Lehman, 925 F.2d 1527 (3d Cir.1991), for example, the defendant testified regarding biographical information in the mitigation phase, and the prosecutor impermissibly used that testimony to argue that he should have said more, including that he was sorry. Id. at 1540. Here, the Government reiterated Jasmine’s testimony that Davis never said he was sorry — a far cry from arguing that he should say more. And in Beardslee v. Woodford, 358 F.3d 560 (9th Cir.2004), the court found that the prosecutor’s comments were impermissible under Griffin, but held that the error was harmless because the comments were not extensive and did not stress lack of remorse to the jury. Id. at 587. Here, the prosecutor’s comments regarding Jasmine’s testimony comprised a few lines of transcript in a lengthy summation, and were the only prosecutorial remarks which referred to Davis’s supposed lack of remorse. The jury was already aware of the wiretap tapes in which Davis celebrated Groves’s death, which suggested lack of remorse. See Coble v. Quarterman, 496 F.3d 430, 438 (5th Cir. 2007) (rejecting ineffective assistance claim for failure to object to prosecutor’s argument describing defendant as “remorseless” where evidence at trial showed that defendant made comments immediately after the murders that indicated his lack of remorse). In the context of the prosecutor’s summation and the evidence overall, therefore, Davis’s rights were not affected by the isolated remark. E. In his fifth claim, Davis argues that the prosecution’s closing arguments at the selection phase of the sentencing hearing were improper and constitute reversible error. Davis specifically takes issue with five categories of statements. First, during closing arguments at the selection phase, prosecutors stated that sentencing Davis to life imprisonment for his convictions under 18 U.S.C. §§ 241 and 242 would not, as a practical matter, punish him for those offenses because he was already serving a life sentence on an earlier drug conspiracy offense. In rebuttal summation, the prosecutor also stated: “But more importantly, as [defense counsel] told you, if you don’t sentence him to death, this murder is a freebie. Don’t do that.” Second, the prosecutor commented on the jurors’ duty to return a death sentence, even if mitigation evidence is presented: You see, some crimes, some defendants deserve the death penalty. Let’s get back to why we’re here. This defendant deserves it. When a police officer murders a citizen in cold blood in retaliation for making a complaint against him, it always deserves the death penalty, period, without exception. Third, the prosecutor referred to the effects of Davis’s actions on the broader community. The prosecutor also told jurors that they “speak for [Kim Groves],” asked jurors to return a death sentence “for every tear that Jasmine Groves cried,” and urged that “Jasmine Groves waits for you to give her justice.” Fourth, in rebuttal closing summation, the prosecutor repeatedly described Davis as “evil” and described defense counsel as follows: Counsel talked to you in the beginning of his closing argument about killing. How dare he compare your dedication, your willingness to follow your sworn duty with the murderous rampage of Len Davis. It is a cheap trick and he is attempting to manipulate you. Don’t let him. Finally, the prosecutor argued other facts, such as “[t]he death penalty was an act [sic] for murderers like this and murderers like Len Davis. You will never see a more cold, calculated killing.” This remark is the only one to which defense counsel objected. The district court overruled his objection. Because Davis did not object to the first four categories of comments in the prosecutor’s closing argument, we apply only plain error review. Fields, 483 F.3d at 360. First, as to the prosecutor’s argument that a life sentence would not be adequate punishment because Davis was already serving a life sentence for drug offenses, we conclude that any failure by the district court to correct the remarks was not plain error. Courts have divided on the question of whether such an argument is permissible. Compare, e.g., People v. Kuntu, 196 Ill.2d 105, 256 Ill.Dec. 500, 752 N.E.2d 380, 403 (2001) (“We find error in allowing the State to argue to the jury that, if it should fail to vote to sentence defendant to death, the jury will be giving the jury five free murders.”), with Rodden v. Delo, 143 F.3d 441, 447 (8th Cir.1998) (“In context, the prosecutor’s statement about the second murder being free urged the jury to impose additional punishment for the additional crime.... The jury could properly consider [the defendant]^ earlier crimes in deciding whether to sentence him to death.”). Given the contradictory authority, and our lack of circuit precedent on the issue, the district court’s error, if any, was not clear or obvious. See United States v. Scroggins, 599 F.3d 433, 450 (5th Cir.2010) (refusing to find plain error in light of divided legal authorities). In addition, the prosecutor’s remarks did not communicate to jurors that they were legally bound to impose the death penalty or that they could not consider Davis’s mitigating factors. The jurors were instructed to the contrary by the court immediately before their deliberations, and were informed that the arguments were just that — not evidence. Moreover, there was not inappropriate disparagement of Davis or defense counsel. See Causey, 185 F.3d at 418. The remarks were drawn from evidence in the record and could be inferred from the evidence the jury heard. See United States v. Mendoza, 522 F.3d 482, 491 (5th Cir.2008) (stating that a prosecutor “is confined in closing argument to discussing properly admitted evidence and any reasonable inferences or conclusions that can be drawn from that evidence”). Davis cannot demonstrate that the remarks prejudiced him. As to the fifth type of remark to which Davis objected, in which the prosecutor characterized him as a “cold-blooded killer,” the district court did not abuse its discretion in overruling the objection. Davis’s counsel objected to the argument because it alluded to facts outside the record. This was in direct response to the court’s sustaining his objection to the prosecutor’s mention of other criminal cases in the Government’s summation. Here, the remark was not directed to facts outside the record or unrelated to the evidence introduced at trial. While the “prosecutor would have done well to refrain from making certain ... statements,” see Johnson v. Bagley, 544 F.3d 592, 598 (6th Cir.2008), the isolated remarks do not cast serious doubt on the correctness of the jury’s verdict. Fields, 483 F.3d at 360. Davis directs us to Sinisterra v. United States, 600 F.3d 900 (8th Cir.2010), in support of his claim. In Sinisterra, a federal habeas petitioner challenged the prosecutor’s closing argument in which the jury was urged to “act as the conscience of the community and ‘send a message to all other drug dealers that this community will not tolerate [crimes like the petitioner’s].’ ” 600 F.3d at 910. The Eighth Circuit held that by urging the jury to impose a death sentence to send a message to other criminals, the prosecutor “impinge[d] upon the jury’s duty to make an individualized determination that death is the appropriate punishment for the defendant.” Id. Sinisterra is distinguishable from the facts here, where the prosecution did not urge the jury to send a message to other criminals. Moreover, we have previously held that “[although the prosecution may not appeal to the jury’s passions and prejudices, the prosecution may appeal to the jury to act as the conscience of the community.” Jackson, 194 F.3d at 655 & nn. 54-56. This is precisely what the prosecution did here. Therefore, Davis suffered no prejudice. F. In his sixth claim, Davis argues that the district court abused its discretion in instructing the jury on the “substantial planning and premeditation” aggravating factor under 18 U.S.C. § 3592(c)(9). Before re-sentencing, the defense proposed the following written jury instruction, in relevant part, regarding the “substantial planning and premeditation” aggravating factor submitted by the Government: Substantial Planning and Substantial Premeditation A premeditated murder is one committed upon deliberation and prior design. In short, the government must prove beyond a reasonable doubt that the defendant killed Kim Groves while acting under color of law only after thinking the matter over and deliberating whether to act. There is no requirement that the government prove that the defendant deliberated for any particular period of time in order to show premeditation. It must, however, show that the defendant had a considerable period of time to become fully aware of what he intended to do and to think it over before he acted. The government must also establish beyond a reasonable doubt that the murder was committed after substantial planning for you to find this element proved. The words “substantial planning” should be given their ordinary, every day meaning. “Substantial planning and premeditation” is not established by simply showing that a murder was premeditated, nor that some small amount of planning preceded it. Rather, it must be shown that there was both a considerable or large amount of premeditation and there was a considerable or large amount of planning preceding the murder. The district court rejected this proposed instruction. The final instruction to the jury read, in relevant part: A killing is committed after substantial premeditation when it is committed upon substantial deliberation.