Full opinion text
MERRITT, J., delivered the opinion of the court, in which MOORE, J., joined. BATCHELDER, C.J. (pp. 353-65), delivered a separate opinion concurring in part and dissenting in part. OPINION MERRITT, Circuit Judge. We first heard this case and rendered a 2-1 decision on March 14, 2008, concluding that murder in a National Forest falls within federal subject matter jurisdiction, United States v. Gabrion, 517 F.3d 839 (6th Cir.2008). The parties then filed supplemental briefs in December 2009 and February 2010; and, after a second oral argument, we are now prepared to decide the other issues on the merits. This case is a direct appeal pursuant to 18 U.S.C. § 3595 in a federal death penalty murder case tried in federal court in Grand Rapids, Michigan, for a murder committed in the Manistee National Forest. The defendant, Marvin Gabrion, was sentenced to death by the jury. Although the defendant raises issues on appeal relating to the guilt and sentencing phases of the trial, we find that three issues, all arising in connection with the sentencing phase, are the most difficult. The first arises from the need to determine the nature of Gabrion’s severe mental and emotional disabilities in order to determine his competence to stand trial at the sentencing phase of the case after he had physically attacked his lawyer in open court in front of the jury. The second arises from the ruling of the District Court that Gabrion, in an effort to mitigate his punishment to life imprisonment, could not use the fact that Michigan, where the murder occurred, had abolished the death penalty. His counsel wanted to offer in mitigation and argue to the jury that in our legal system Gabrion’s trial would have had to take place in state court where life imprisonment was the maximum punishment, instead of in the federal court, if the victim’s body had been found outside the Manistee National Forest, just 227 feet away from where it was found inside the National Forest. His counsel wanted the jury to choose life imprisonment, rather than the death penalty, because the State of Michigan had abolished the death penalty and had not executed anyone for more than 160 years. The third issue arises from the failure of the District Court to advise the jury that it must find that the “aggravators outweigh the mitigators beyond a reasonable doubt” in order to impose the death penalty. The District Court left undefined the measure of persuasion or the degree of certitude required of each juror concerning the ultimate question of fact resolved by the weighing process. The State of Michigan accused Marvin Gabrion of raping Rachel Timmerman in August 1996. There is no doubt that he murdered her and her infant daughter in June 1997 while awaiting trial for raping her. The jury verdict at the guilt phase of Gabrion’s murder trial accepted the government’s detailed evidence that Gabrion bound Rachel Timmerman with chains during the first week of June 1997, took her while alive in a small boat, and dumped her into Oxford Lake with cinder blocks to weigh her down. Her bloated, drowned body was found on July 5, 1997, after it had been in the lake for several weeks. The lake was a shallow swamp filled with vegetation so that the body would stay where it was dumped from the boat and would not be carried to another location by a current or wind. The body was within the Manistee National Forest, 227 feet south of the boundary. Timmerman’s eyes and mouth were covered with duct tape wrapped around her head. In addition to overwhelming circumstantial evidence, three witnesses testified that Gabrion had made statements to them incriminating himself in Timmerman’s murder. At the sentencing phase of the case after the guilty verdict, the jury found the existence of a number of aggravating factors: a likelihood that Gabrion would harm others in the future; the brutal, depraved, and premeditated nature of his crime; the murder of Timmerman’s infant daughter; and obstruction of justice in order to avoid apprehension for rape. The jurors also found as mitigating factors that he was abused as a child and that he had a significant Antisocial Personality Disorder. The testimony and the psychiatric literature lead to a conclusion that Gabrion suffered from an extreme Antisocial Personality Disorder in the nature of severe psychopathic madness; but we agree with the District Court that this did not render him incompetent to stand trial. He knew what he was doing throughout We conclude, however, that the District Court did err in two respects — by failing to give a proper reasonable doubt instruction and by refusing to allow Gabrion’s counsel to argue for mercy in mitigation of the death penalty on the ground that Gabrion could not have received the death penalty if the body had been found 227 feet away, outside the National Forest. Counsel was prevented from trying to convince the jury in mitigation that the administration of the death penalty in this instance was random and based on chance. The District Court’s ruling in this respect was in error under 18 U.S.C. § 3592(a), which reads: “Mitigating factors — In determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider any mitigating factor....” (Emphasis added.) We will first analyze the competence, mitigation, and reasonable doubt problems. We will then analyze the remaining issues. The result is that the case will be remanded for a retrial of the sentencing phase of the case. The issues will be discussed in the order set out in the footnote below. The statute provides that on appeal: “The Court of Appeals shall address all substantive and procedural issues raised on the appeal of a sentence of death.... ” 18 U.S.C. § 3595(c)(1). I. Gabrion’s Mental Disabilities and His Competence to Stand Trial The actual murder trial began on February 25, 2002, and ended on March 16, 2002. Beginning with pretrial matters three years before and throughout the trial, Gabrion consistently disrupted the proceedings in many ways. At oral argument before us on appeal, appellate counsel focused her argument primarily on the contention that Gabrion was incompetent to stand trial — particularly during the sentencing phase after he hit his lawyer in the face with his fist in front of the jury. The claim that Gabrion lost competence in the sentencing phase of the trial when he punched his lawyer in the face is belied by the testimony of Dr. Gregory Saathoff. He is a professor of clinical psychology at the University of Virginia. He testified on March 15, 2002, after Gabrion’s attack on his lawyer. Saathoff testified in detail that Gabrion’s behavior at trial was part of Gabrion’s deviant personality characterized by a recurring pattern of deception and in this instance his effort to fake incompetence. This evaluation after the attack was consistent with the evaluations of seven other mental health experts before the attack. For example, the first evaluation was given by Dr. Emily Fallis of the Federal Medical Center in Fort Worth in May 2000. She found Gabrion to be a “sociopath,” a man with an “Antisocial Personalty Disorder [that] include[d] inability to follow rules and laws; lying and manipulating others; impulsivity; irritability and aggressiveness; and consistent irresponsibility.” (Vol. VII, JA 2277.) Gabrion’s behavior fits the checklist for severe psychopathy in the psychiatric literature that includes the following characteristics: 1. Glibness/superficial charm 2. Grandiose sense of self-worth 3. Need for stimulation 4. Pathological lying 5. Conning/manipulative 6. Lack of remorse or guilt 7. Shallow affect 8. Callous/lack of empathy 9. Parasitic lifestyle 10. Poor behavioral controls 11. Promiscuous sexual behavior 12. Lack of realistic, long-term goals 13. Impulsivity 14. Irresponsibility 15. Criminal versatility Kent A. Kiehl, “A Cognitive Neuroscience Perspective on Psychopathy: Evidence for Paralimbic System Dysfunction,” Elsevier 107, 109 (2006), available at www. sciencedirect.com by searching for author. From the early pretrial proceedings, Gabrion sought to represent himself without a lawyer. He began to inundate the magistrate judge with letters and writings saying that his lawyers were “Satanic” and trying to frame him. He refused to cooperate with his appointed lawyers by providing information. He harassed them. For example, he called the office of one of his lawyers more than 80 times on a single day while continuing to inundate court staff with letters and phone calls. He continues this process on appeal by sending voluminous writings and letters to this court. On occasion, he called the district judge an “evil Hitler” and said in court that the judge was having sex with a 14-year-old girl and had gotten a 13-year-old girl pregnant. He insulted the jury. He came to court dirty with black marks over his forehead and the letters “AZZA” on his forehead. On some occasions during the trial, Gabrion’s conduct became so unruly that the court had to expel him from the courtroom and allow him to return restrained at the wrists and legs. As a precaution, Gabrion had to sit between two marshals when he was allowed to return to the courtroom after striking his lawyer in the face. Typically he made observations to the courtroom audience like the following: “I am sorry to be forced to be represented by evil shysters in a kangaroo court in a prostitute evil nation that murders its babies by abortion. And I’ll be quiet because I am being forced to just as if I were in Nazi Germany.” These are but a few examples of many instances of similar behavior during the course of the trial. Gabrion’s appellate counsel argues that the only solution to the problem of Gabrion’s efforts to disrupt the proceedings from the beginning of the proceedings in 1999, including his attack on his lawyer in March 2002, to the present time is to order a new competency hearing. Counsel concludes that the District Court “committed reversible error and denied Gabrion due process by refusing to hold a competency hearing” during the sentencing phase of the case. We do not agree because the psychiatric and mental health records in the case convince us, as they did the District Court, that Gabrion knew what he was doing. He was “malingering” — defined in psychiatric literature as “the intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives,” as explained in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). He was faking incompetence in order to disrupt the trial. Malingering, faking incompetence, trying to deceive the court, pathological lying and murder are signs of a mental illness that thankfully affects only a small part of the population; but it is not the same as the mental illness that gives rise to “incompetence to stand trial.” Incompetence is described as a mental illness causing the defendant to be “unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a). The District Court must order a competency hearing only when it has “reasonable cause” to believe the defendant is incompetent. Id. Given the outcome of all of Gabrion’s previous evaluations and the persistent finding of his malingering, no such reasonable cause existed. The deliberate refusal of an actor to assist counsel in order to appear crazy — like playing the role of an idiot in a play — makes the actor incompetent on the stage but not in a real court of law. Gabrion retained his memory and sought to create the appearance of idiocy, imbecility, and loss of memory. II. Whether Michigan’s Abolition of the Death Penalty Is a “Mitigating Factor” That the Jury May Consider Very early in this case, the District Court thought that Michigan’s policy against the death penalty was an important factor that should be taken into account by the Department of Justice. The court engaged government counsel in an extended discussion of the subject, only part of which is quoted below: MR. VERHEY: ... They’ve [the capital punishment decision makers in the Justice Department] told us that they do not factor into their consideration the fact that a ease might come from a state that does not recognize the death penalty as opposed to a state that does. THE COURT: Well, I’m not — I don’t want to argue with you, but I want to pose this question. Shouldn’t it make a difference? The people of the State of Michigan are ultimately sitting on the jury. The people of the State of Michigan are ultimately the ones of which this judge and the prosecution team and the defense team are comprised. Under a system of federalism, aren’t the state’s public policy considerations of some significance to the Department of Justice? The point of view first described by the District Judge in this colloquy at the beginning of the case (“the people of Michigan are ultimately sitting on the jury”) takes into account that a large portion of the population is presumably somewhat skeptical about the death penalty. Michigan’s abolition of the death penalty, adopted by the Michigan state legislature in 1846, presumably reflects the will of the people, and the “jury trial is meant to ensure their control in the judiciary.” Blakely v. Washington, 542 U.S. 296, 306, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). That is the reason the Sixth Amendment requires that the jury must be drawn from “the State and district wherein the crime shall have been committed.” Constitutionally, the question of imposing the death penalty must be localized. It must be vested in a local jury so that the punishment will reflect the values of the people of Michigan in order “to maintain a link between contemporary community values and the penal system.” Gregg v. Georgia, 428 U.S. 153, 181, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The District Court later ruled that Michigan’s longstanding policy against the death penalty could not be mentioned or admitted as a mitigating factor, or discussed with the jury in final argument during the penalty phase of the trial. It could not be referred to as a reason for sparing Gabrion’s life. Failing to consider the specific language of the statute allowing “any mitigating factor,” the court reasoned without further discussion that the Michigan policy did not fit within any of eight mitigating factors listed in the Federal Death Penalty. This ruling is inconsistent with the language of the Act requiring the factfinder to consider “any mitigating factor” and “any information relevant to a mitigating factor.” 18 U.S.C. § 3592(a); id. § 3593(c). The Act provides as follows: § 3592. Mitigating and aggravating factors to be considered in determining whether a sentence of death is justified (а) Mitigating factors. — In determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider any mitigating factor, including the following: (1) Impaired capacity.... (2) Duress.... (3) Minor participation.... (4) Equally culpable defendants .... (5) No prior criminal record.... (б) Disturbance.... (7) Victim’s consent.... (8) Other factors. — Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence. Id. § 3592(a) (emphasis added). Thus, the statute requires (“shall”) consideration of “any mitigating factor, including” a nonexclusive list of eight factors. The statute then sets out a large number of aggravators for different capital crimes. It also has an open-ended aggravator provision similar to the “any mitigating factor” language. See id. § 3592 (“The jury, or if there is no jury, the court, may consider whether any other aggravating factor for which notice has been given exists.”). Like mitigators, the aggravator list is expandable, and as we shall point out in Section XV the government expanded the aggravators beyond those listed to include Gabrion’s “future dangerousness.” Section 3593(c) provides more broad language regarding mitigating factors: “[Ijnformation may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factors.... The defendant may present any information relevant to a mitigating factor.... [T]he defendant ... shall be given fan-opportunity to present argument ... as to the appropriateness in the case of imposing a sentence of death.” Section 3593(d) then requires that “a finding with respect to any aggravating factor must be unanimous” but “a finding with respect to a mitigating factor may be made by 1 or more members of the jury.” Based on that rule, one juror could block the death penalty. There are no cases so far that have ruled in a federal death case on the question of permitting evidence or argument concerning a given state jurisdiction’s policy against the death penalty. There are a few cases, however, that discuss the meaning of the “any mitigating factor” language in the Act. United States v. Davis, 132 F.Supp.2d 455, 464 (E.D.La.2001), has been repeatedly cited both by other District Courts following this approach and by Gabrion in the instant matter. The proffered mitigating evidence in Davis was a “residual doubt” argument, defined by the court as “a lingering uncertainty about facts, a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty.’ ” Davis, 132 F.Supp.2d at 456. The court’s opinion contained the following crucial paragraph: The most notable aspect of the statute is the introductory statement. The finder of fact (1) “shall” consider (2) “any mitigating factor, (3) including the following.” First, the jury “shall” or must consider the mitigating factors; it is obligatory, not discretionary. Second, the fact finder must consider “any” mitigating factor. There is no qualification or limitation other than the factor “mitigate” against a sentence of death. Third, “[ijncluding the following” means the subsequent list is not exclusive, but is instead illustrative. The eight identified factors are examples of specific factors that, if supported by the evidence, mitigate against the death penalty. Most significantly for the issue here, subhead (8) which refers to other factors “in the defendant’s background, record, or character or any other circumstance of the offense” is a sub category of “any mitigating factor” rather than being the outer boundaries of what may be considered as mitigating. What 18 U.S.C.A. § 3592 allows is substantially broader than what the Supreme Court has declared to be the minimal requirements under the Constitution. According to the Supreme Court, the Eighth Amendment demands consideration only for those mitigating factors that concern the defendant’s “character or record and any of the circumstances of the offense ...” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Under the statute, on the other hand, the Supreme Court’s constitutional minimum is simply subhead (8) of a nonexclusive list. The statute demands the fact finder consider “any mitigating” factor ... period. Id. at 464. The question is whether the fact of the location of the body so close to a line that forbids the death penalty allows counsel to try to convince one or more jurors that imposing the death penalty in these circumstances would treat life or death in a random and arbitrary way based on chance. The phrase “any mitigating factor” plainly includes information about Michigan’s policy against the death penalty and an argument based on the absence of proportionality in punishment when life or death is made to turn on chance and the lives of other equally guilty psychopaths are spared. The case was not brought to serve a special national interest like treason or terrorism different from the normal state interest in punishing murder. The jury should be given the opportunity to consider whether one or more of them would choose a life sentence rather than the death penalty when the same jury considering the same defendant’s proper punishment for the same crime but prosecuted in Michigan state court could not impose the death penalty. These arguments are all “mitigating” because they could conceivably make a juror question “the appropriateness in the case of imposing a sentence of death.” 18 U.S.C. § 3593(c). It is possible that their arguments would not be very appealing to jurors in this case, but that is not the question. The question is whether counsel should be foreclosed from even making them. At the sentencing phase of a death case the question is not a semi-technical question like a sentencing enhancement issue under the U.S. Sentencing Guidelines. The death penalty is never a “mandatory minimum.” In such a case each juror must call on individual judgment drawn from a lifetime of experience and learning and must decide whether to impose the death penalty or a life sentence. The broad, multi-dimensional question of the death penalty is also the reason the error in this case cannot be said to be “harmless” under the doctrine of “harmless error.” (18 U.S.C. § 3595(c) provides: “The court of appeals shall 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.”) We have no way of knowing beyond a reasonable doubt what one or more jurors would have done after listening to a lawyer arguing for life by effectively using Michigan’s longstanding policy to buttress the argument, even with respect to a murderer as vile as Gabrion. Accordingly, we reverse on this issue for a new penalty phase of the trial. In response to our decision on this point, our dissenting colleague argues that our opinion is “an endorsement of jury nullification of federal law.” Unless the death penalty is mandatory under federal law, which of course it is not, mitigation of capital punishment by finding that historic practices and cultural inclinations in the local area outweigh other aggravating factors in the case is not jury nullification. Jury nullification and jury deliberation which arrives at a verdict of life imprisonment, are not the same. The latter is based on Socratic debate and choice after considering more complete information. Normally, deliberation based on more complete information is considered preferable to less informed decision making. That is the reason for the statutory insistence on jury consideration of “any mitigating factor” and “any information relevant to a mitigating factor.” Congress did not want death imposed without full consideration of the alternative. A juror would not “nullify” any provision of the federal statute if she voted against the death penalty because she learned that its imposition is only possible because of the total happenstance of where the victim’s body was found, and would be inconsistent with other murder cases in Michigan since 1846. In Gregg v. Georgia, 428 U.S. 153, 205, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Supreme Court recognized that “past practice among juries faced with similar factual situations” is valuable information in the capital sentencing process. Our dissenting colleague appears to be the first judge to suggest that allowing a jury to consider such information is unlawful jury nullification because it may encourage the jury to consider life imprisonment. In addition to our colleague’s “jury nullification of federal law” argument, the dissent also argues that there is a difference of opinion among the circuits on the issue of whether historic practices in a state fall within the language “any mitigating factor” or “any information relevant to a mitigating factor.” No circuit has held that such information is inadmissible in litigation. This circuit-split argument culminates in the dissent’s argument that “the case most closely analogous to Gabrion’s is United States v. Higgs, 353 F.3d 281, 289 (4th Cir.2003).” The dissent’s problem is that the Higgs case, like the others she cites, does not raise the same question we have here. In Higgs the Court is clear that the question before it was a constitutional one — what the Eighth Amendment requires concerning the admissibility of mitigating evidence: We review de novo Higgs’s claim that the district court violated the Eighth Amendment by refusing to submit to the jury, as a mitigating circumstance, that Higgs would not have been eligible for the death penalty if the murders had occurred within the jurisdiction of the State of Maryland. Higgs sought to introduce expert testimony that under Maryland law, the death penalty may only be imposed on the “triggerman” in cases such as this and to argue that, because the murders took place in an area where Maryland had an easement over federal property, he could not have known that he was on federal land when he committed the murders. We do not reach any constitutional claim here because the statute itself is clear, and no party claims that a constitutional argument should be decided first. We find no conflict with any other circuit on the issue before us under sections 3592(a) and 3593(c). III. The Failure to Give A Reasonable Doubt Instruction in Weighing Aggravators and Mitigators Gabrion argues that the District Court’s penalty phase jury instruction concerning the manner in which the jury was to weigh the aggravating and mitigating factors violated his due process rights. Specifically, he argues that the jury should have been instructed that in order to impose death they need to find “beyond a reasonable doubt” the element of the death sentence that the aggravating factors outweigh the mitigating factors. The District Court did not advise the jury that it should apply any particular measure of persuasion or degree of belief to this ultimate question of fact. This ultimate question on which life imprisonment or capital punishment turns was left to the jury to answer intuitively. We believe this was error because a much greater degree of certainty is required when the life of a person is at stake. We, therefore, hold that a jury’s finding that the aggravating factors outweigh the mitigating factors is an element of the death penalty and must be found beyond a reasonable doubt, the same standard constitutionally required for all other findings of fact and mixed questions of law and fact. On the general question, see the broad language of United States v. Gaudin, 515 U.S. 506, 510-12, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (criminal convictions must “rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt,” including issues of “materiality” and “mixed questions of law and fact”). Under the Federal Death Penalty Act, a death-eligible defendant “shall be sentenced to death if, after consideration of the factors set forth in section 3592 ... it is determined that imposition of a sentence of death is justified.” 18 U.S.C. § 3591. This determination is committed to the jury, who is tasked with weighing aggravating and mitigating factors; though the Act styles this determination as a “recommendation,” it is one that the judge is obliged to follow. 18 U.S.C. § 3594. Section 3593(e) states as follows to the degree or intensity of belief required by the jury: [T]he jury ... shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote ... shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence. (Emphasis added.) Thus the statute itself leaves up in the air the measure of persuasion and the jury’s requisite degree of belief on the ultimate element of the offense concerning the comparison between aggravators and mitigators. In the instant case, mere “sufficiency” in the mind of a juror is all that the instructions to the jury, which mirrored the provision quoted above, implied. The instructions were based on the premise that there was no need for the jury to have in mind any particular degree of certainty. We disagree with this premise. The sentencing phase of the case is part of a criminal proceeding that may result in a verdict of death. As discussed above, the Act plainly requires as a necessary precondition to a capital defendant’s receiving the sentence of death that the government prove and the jury find that aggravators outweigh the mitigators. Normally, in the run-of-the-mill criminal case, the government is charged with “pro[ving] beyond a reasonable doubt ... every fact necessary to constitute the crime” with which a defendant is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). This requirement insures “the moral force of the criminal law.” Id. It has been “adhered to by virtually all common-law jurisdictions.” Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). This should be particularly true in death cases. Professor Linda Carter has outlined the basic reasons for this requirement: As the Court stated in a case reaffirming the principle that all mitigating evidence must be considered, regardless whether the jurors were unanimous in finding a particular mitigating circumstance: The decision to exercise the power of the State to execute a defendant is unlike any other decision citizens and public officials are called upon to make. Evolving standards of societal decency have imposed a correspondingly high requirement of reliability on the determination that death is the appropriate penalty in a particular case. The nature of the decision itself, life or death, thus speaks forcefully for using a heightened standard of beyond a reasonable doubt. A Beyond a Reasonable Doubt Standard in Death Penalty Proceedings: A Neglected Element of Fairness, 52 Ohio. L.J. 195, 220 (1991) (quoting Mills v. Maryland, 486 U.S. 367, 383-84, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988)). See also Note, “Variable Verbalistics, The Measure of Persuasion in Tennessee,” 11 Vand. L.Rev. 1413 (1958) (jury instructions on measure of persuasion needed must be clear and understandable). Likewise, a number of state supreme courts in death penalty cases have thoroughly analyzed the question of the measure of persuasion and concluded that the “beyond a reasonable doubt” standard is necessary “to communicate to the jurors the degree of certainty that they must possess that any mitigating factors do not outweigh the proven statutory aggravating factors before arriving at the ultimate judgment that death is the appropriate penalty.” People v. Tenneson, 788 P.2d 786, 792-94 (Colo.1990) (collecting cases). Recent trends in federal constitutional law confirm our application of the basic rule of Winship to the weighing process. The Supreme Court in Ring v. Arizona applied the reasoning of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) — which first announced the recognition that facts increasing a maximum sentence must be proven to a jury beyond a reasonable doubt, regardless of whether a criminal statute purports to make those facts sentencing considerations rather than elements of an offense — to the penalty phase of a capital prosecution, and held that the Sixth Amendment requires that aggravating factors required for the imposition of a death sentence must be found by a jury, not a judge. 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The Court in Ring did not have the issue of weighing before it, id. at 597, n. 4, 122 S.Ct. 2428, but we think its reasoning is helpful in resolving this issue. The Government attempts to limit Ring’s import by arguing that the Act’s requirement that the jury find the presence of aggravating factors beyond a reasonable doubt is enough to satisfy constitutional requirements. They insist that under the Act a defendant is “death eligible” once the jury finds the presence of aggravators, and thus that the outcome of the weighing process, rather than increasing that eligibility, simply fixes the punishment within the eligible range, and so it is freed from all constitutional requirement otherwise applicable to jury findings. This is an empty formalism of the sort the Supreme Court explicitly rejected in Ring. See Ring, 536 U.S. at 602, 122 S.Ct. 2428 (“The dispositive question ... is one not of form, but of effect.”) (quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348). It is plain from the Act that, even after the jury finds the presence of aggravators beyond a reasonable doubt, more needs to be proven before the defendant may be sentenced to death: a defendant is not truly “eligible” for the death penalty — that is, that the death penalty cannot legally be imposed on him — unless and until the jury makes the determination that the aggravators outweigh the mitigators. He is no more “eligible” for the death penalty before that determination is made than he was when he was indicted; the range of penalties to which he is exposed does not include the death penalty until the jury makes that required factual finding of this element of the offense. “Ml facts essential to the imposition of the level of punishment that the defendant receives — whether the statute calls them elements of the offense, sentencing factors, or Mary Jane — must be found by the jury beyond a reasonable doubt.” Ring, 536 U.S. at 610, 122 S.Ct. 2428 (Scalia, J., joined by Thomas, J., concurring). That requirement surely applies to the jury’s determination of whether the Government has proven a defendant worthy of society’s ultimate punishment, in spite of features of his case that may militate in favor of a life sentence. The refusal of some of our sister circuits in death cases to impose the ordinary measure of persuasion applicable to criminal cases on the weighing of aggravators and mitigators is based on their theory that this weighing does not resolve a question of fact, but is instead a “process” designed to arrive at a moral, as opposed to factual, judgment. See United States v. Sampson, 486 F.3d 13, 32 (1st Cir.2007) (holding that “the requisite weighing constitutes a process, not a fact to be found” and that “[t]he outcome of the weighing process is not an objective truth that is susceptible to (further) proof by either party”); United States v. Fields, 483 F.3d 313, 346 (5th Cir.2007) (holding that the jury’s decision that the aggravating factors outweigh the mitigating factors is “not a finding of fact” but a “highly subjective, largely moral judgment”) (internal quotation marks and citations omitted). We depart from the reasoning of these cases at two related points. First, it has never been the case that the constitutional requirement of proof beyond a reasonable doubt applies only when the jury is tasked with the determination of “objective truthfs] ... susceptible to ... proof’ or “raw facts.” In United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), the Supreme Court explicitly rejected the notion of the criminal jury as a “mere factfinder,” and held that the requirement of proof beyond a reasonable doubt extends to its resolution of mixed questions of law and fact. Id. at 513-14, 115 S.Ct. 2310. As referred to above, the Court in Gaudin held that “the jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.” Id. at 514, 115 S.Ct. 2310. Surely that responsibility is all the more acute where the ultimate conclusion is not just guilt or innocence, but life or death. Second, these courts misapprehend the nature of jury determinations when they consider the idea of a “process” to be at odds with the question of ultimate fact that the process resolves. In both civil and criminal cases at common law, we have long had many standards that require the jury to weigh factors that lead to an ultimate conclusion that the law regards as an ultimate finding of fact, even when that “fact” may have legal or moral, as well as “objective,” aspects. These include: questions of negligence (where the jury is invited to “weigh[ ] interests” in evaluating whether a defendant’s conduct meets that of a “reasonable man,” see Restatement (Second) of Torts § 283 & cmt. e (1965)), punitive damages (where the jury is invited to weigh factors such as the character and intent of the defendant’s act, the extent of the harm, and the wealth of the defendant in making the basically moral determination of whether his conduct was “outrageous,” see id. § 908), insanity (where the jury is asked whether a defendant could appreciate the moral wrongfulness of his conduct at the time of his alleged offense, see Model Penal Code § 4.01 (1962)), tortious interference with contract (where the jury is tasked with weighing factors such as the defendant’s intent in determining whether an alleged interference is “improper,” see Restatement (Second) of Torts § 766, 8c cmt. j (1979)), and many other mixed issues of law and fact in tort and criminal law. That these various weighing determinations involve a process in which the jury weighs factors does not mean that they do not result in the finding of a fact. These determinations require varying degrees of certitude, i.e., burdens of proof, depending on the policy or attitude of the law in balancing the culpability of the defendants versus the nature of the punishment. But our society has decided on only one degree of certitude appropriate in criminal cases: beyond a reasonable doubt. Weighing aggravators versus mitigators in death cases is just one of many — as well as the most drastic — of the “processes” that lead to an ultimate finding of fact. Finally, the Act’s harmless-error provision notwithstanding, the law is clear that a court’s error in refusing to deliver a reasonable doubt instruction to a jury in a criminal ease is a structural error not susceptible to harmless error analysis. See Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (refusing to apply harmless error analysis where trial court erred in describing burden of proof in a criminal case, reasoning that “a misdescription of the burden of proof ... vitiates all the jury’s findings”). Accordingly, our determination that Gabrion was entitled to a reasonable doubt instruction as to the weighing of aggravating and mitigating factors requires the reversal of his death sentence. IV. The Failure of the Indictment to Allege Statutory Aggravating Factors Gabrion argues that his indictment was fatally deficient under the Fifth Amendment because it did not allege any of the statutory aggravating factors that were legally necessary to render him eligible for the death penalty. But one year before the trial, the government advised Gabrion of all the aggravating factors it would prove in a notice that it would seek the death penalty. Assuming for the sake of argument that the Fifth Amendment requires indictments under the Federal Death Penalty Act to allege statutory aggravating factors, we nonetheless find that error to be harmless here. “The court of appeals shall 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.” 18 U.S.C. § 3595(c)(2)(C). Gabrion has not set out how he was harmed by the absence of statutory aggravating factors in the indictment. Nor does he tell us how stating the aggravating factors in the indictment is a per se requirement not subject to the Act’s harmless-error provision. To determine whether the absence was harmless error, we look to the two primary functions of the indictment: (1) to provide notice of the crime, allowing the defendant to prepare a defense; and (2) to bring the public through a grand jury into the charging decision. See United States v. Robinson, 367 F.3d 278, 287 (5th Cir.2004) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), and Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (I960)). As to the first function, Gabrion had notice of the aggravating factors one year in advance of trial — more than sufficient time to prepare a defense. As to the second function, no rational grand jury could fail to find that the prosecution lacked probable cause on any of the aggravating factors, because the evidence of probable cause on those factors was strong. See Robinson, 367 F.3d at 293. Moreover, the fact that Gabrion’s sentencing jury later unanimously found all of the aggravating factors is, “at a minimum, persuasive evidence of how a grand jury would find.” Id. at 288-89. Any error was, therefore, harmless. We can summarize the situation here no better than Blackstone, who said the following regarding why courts should not reverse otherwise-proper convictions simply because the prosecution proceeded by information rather than by indictment: “The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had originally been by indictment.” 4 William Blackstone, Commentaries *305 (cited in Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 28 L.Ed. 232 (1884) (holding that the Indictment Clause of the Fifth Amendment is not incorporated against the states via the Due Process Clause)). The same, too, with Gabrion. V. Proof of Subject Matter Jurisdiction First, Gabrion raises a federal subject matter jurisdiction argument based upon and combined with a factual argument that the evidence was insufficient to prove that Gabrion murdered Timmerman at a location at Oxford Lake owned by the federal government. He also raises a second argument that the “patchworked” character of federal ownership of parcels in the Manistee National Forest renders any murder conviction or finding of jurisdiction there a violation of due process, equal protection, and the Eighth Amendment. Judge Moore has addressed these same federal criminal jurisdiction arguments in her previous, separate opinion on subject matter jurisdiction in United States v. Gabrion, 517 F.3d 839, 866-76 (6th Cir.2008) (Judges Batchelder and Moore found general, federal criminal subject matter jurisdiction in national forests, and Judge Merritt dissented on a separate ground that 16 U.S.C. § 480 does not criminalize murder in the national forests). Given the current posture of the case and given our previously separately stated views on subject matter jurisdiction, all members of the panel join Judge Moore’s opinion, cited above, in parts III, IV and V, which addresses these issues. VI. Gabrion’s Request to Proceed Without Counsel In Faretta v. California, the Supreme Court observed that the Sixth Amendment creates a right to self-representation. 422 U.S. 806, 818-32, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, the right to self-representation “is not absolute.” Martinez v. Court of Appeal of Cal., 528 U.S. 152, 161, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (holding that defendants have no right to self-representation on appeal). “Even at the trial level ... the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.” Id. at 162, 120 S.Ct. 684. In Faretta itself, the Court noted that “[t]he right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.” 422 U.S. at 834 n. 46, 95 S.Ct. 2525. For this reason, “the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.” Id.; cf. Illinois v. Allen, 397 U.S. 337, 342-43, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (holding that a defendant can forfeit his Sixth Amendment right to be present in trial if he insists on being “so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom”). In Section I above, we set out Gabrion’s attempts to disrupt the trial. His attempt to represent himself was part of that effort. Gabrion unequivocally asserted his right to self-representation in a motion filed with the District Court in October 2001. In that motion, he called his appointed counsel “evil,” “corrupt,” and “liars,” and he accused them of stealing $1800 from him. Only two months earlier, during a hearing on whether Gabrion should undergo a competency evaluation, Gabrion interrupted the proceedings and was ejected from the courtroom immediately after the following exchange: DEFENDANT GABRION: Sir, the victim’s family and the public deserve to know the truth from me. THE COURT: Sir, I haven’t addressed you yet. You’ll be quiet if you would, please. [To the government:] You may proceed. [THE GOVERNMENT:] Thank you. DEFENDANT GABRION: [My appointed counsel] has destroyed evidence that Charles Cass murdered Rachel Timmerman. THE COURT: Sir, sir, either you’re quiet today or you go upstairs and sit in the cell. The choice is yours. DEFENDANT GABRION: My choice is to fire [my appointed counsel] for being satanic and destroying evidence that Charles Cass murdered Rachel Timmerman. THE COURT: One more question, one more outburst — • DEFENDANT GABRION: I have no possibility of getting a fair judge— THE COURT: Take him upstairs. DEFENDANT GABRION: —where the judge had sex with a 14-year-old girl last week and got another 13-year-old pregnant that I know of that I can take these people to right now. I got zero possibility. You’re nothing but an evil Hitler. Shit. And why don’t you tell the FBI to go arrest that perverted bastard. The District Court denied Gabrion’s motion to proceed pro se in a four-page opinion. The opinion asserted that Gabrion’s “disruptive behavior in this Court, his abusive and obscene language in motions and letters, and his failure to heed the advice of counsel on commonsense issues concerning his pretrial behavior, convince this Court that [Gabrion] will not be willing or able to follow the ‘ground rules’ of trial procedure.” One month later, Gabrion filed a motion for reconsideration, in which he apologized and promised to conform his conduct to the rules of the courtroom. Later that same day, however, at a hearing on a motion to suppress, Gabrion consistently interrupted the proceedings. The District Court denied that motion and indicated its “grave doubts regarding [Gabrion’s] ability to conform himself’ to minimum standards of courtroom behavior. Given the totality of Gabrion’s disruptive behavior, the District Court did not err in precluding Gabrion from representing himself. Gabrion’s behavior not only fell below the accepted minimum for courtrooms; it was of such a character that would be unacceptable in any corner of a civil society. The District Court had every reason to believe this conduct would continue — and on a more prominent stage — if Gabrion were given the opportunity to represent himself. Considering how Gabrion interrupted courtroom proceedings several times only hours after promising to conform, the District Court was entitled to view that promise as empty and simply more manipulative rhetoric. It may be a better practice for trial courts to give the benefit of the doubt to misbehaving defendants who invoke their right to self-representation and then revoke that right if they disrupt the case. But the District Court did not need to do so with Gabrion. At the time he moved to represent himself, he had been persistently disruptive and deeply disrespectful in court. He had filed numerous bizarre motions and letters. He had committed forty major infractions while incarcerated at Calhoun County Jail. Given his unbroken pattern of misconduct both inside and outside of the courtroom, the only possible inference was that his serious misbehavior would continue if he represented himself. Under such circumstances, we do not require the District Court to undertake the empty and time-consuming formality of granting his right to self-representation only to revoke it days later. To do so would be to facilitate the same type of disruptive and abusive conduct the Court condemned in Faretta. Accordingly, the District Court properly denied Gabrion’s motion to proceed pro se. VIL Whether Gabrion’s Physical Assault of his Counsel in Court Required the Withdrawal of his Trial Counsel or a Mistrial Gabrion argues that the District Court should have granted his trial counsel’s motion to withdraw and motion for a mistrial after Gabrion physically assaulted one of his attorneys, David Stebbins, in front of the jury. The attack occurred during the first day of the penalty proceedings. Shortly after Gabrion punched Stebbins in the head, Stebbins made oral motions for a mistrial and to withdraw as counsel. The District Court denied the motions. Stebbins later renewed those motions, and this time Paul Mitchell, Gabrion’s other trial counsel, also sought to withdraw. The District Court again denied the motions, reasoning that there was no good cause for withdrawal, that Gabrion was trying to manipulate the proceedings, that Stebbins and Mitchell were conscientious and diligent, and that the same problems would almost certainly occur in a new trial. For the reasons below, we find that the District Court did not abuse its discretion in denying both motions. A. The Motion to Withdraw as Gabrion’s Trial Counsel “When reviewing a District Court’s denial of a motion to withdraw or substitute counsel, we generally must consider: (1) the timeliness of the motion, (2) the adequacy of the court’s inquiry into the matter, (3) the extent of the conflict between the attorney and client and whether it was so great that it resulted in a total lack of communication preventing an adequate defense, and (4) the balancing of these factors with the public’s interest in the prompt and efficient administration of justice.” United States v. Mack, 258 F.3d 548, 556 (6th Cir.2001). “We review the district court’s denial for abuse of discretion.” Id. at 555-56. The District Court adequately considered the matter in its written opinion. Although it is undeniable that a conflict existed between Gabrion and his trial counsel after the physical assault, that conflict did not cause a total lack of communication: the District Court found in its opinion that Gabrion communicated with his counsel after the assault. (J.A. 560.) The fourth factor from the Mack case is perhaps the most persuasive. If the District Court had granted the motion to withdraw, it would have had two conceivable options: appoint substitute counsel for Gabrion, or hold that Gabrion forfeited his right to counsel and had to represent himself for the remainder of the proceedings. The former option would have delayed the sentencing phase for months as substitute counsel caught up to speed, thereby significantly detracting from the prompt and efficient administration of justice. The latter option would have undermined the public interest by permitting a psychopathic defendant to manipulate the proceedings so that he would represent himself, rather than be represented by trained and conscientious counsel. Among the conceivable options presented by Gabrion’s conduct, we believe the District Court chose the correct one. Accordingly, we hold that the District Court did not abuse its discretion by denying counsel’s motion to withdraw. B. The Motion for a Mistrial “A defendant may move for a mistrial where there is a legitimate claim of seriously prejudicial error such that the defendant is unable to obtain a fair trial.” United States v. Phibbs, 999 F.2d 1053, 1066 (6th Cir.1993) (internal quotation marks omitted). “The denial of a mistrial is generally within the discretion of the trial court, and our review of the court’s ruling is confined to whether the trial court abused its discretion.” Id. (internal quotation marks omitted). Other circuits have refused to permit mistrials when the prejudicial event was a defendant’s own unprovoked outburst in court. E.g., United States v. Harris, 2 F.3d 1452, 1456 (7th Cir.1993); United States v. West, 877 F.2d 281, 288 (4th Cir.1989); United States v. Aviles, 274 F.2d 179, 193 (2d Cir.1960). As these cases recognize, “[t]o allow a defendant by his own misconduct to terminate his trial even temporarily would be to allow him to profit from his own wrong.” Harris, 2 F.3d at 1456. Such a precedent also could have negative effects on future trials: “it would provide an easy device for defendants to provoke mistrials whenever they might choose to do so.” Aviles, 274 F.2d at 193; accord West, 877 F.2d at 288 (reasoning that permitting mistrials in this situation would “encourage future misconduct by defendants”). To grant a mistrial would be to allow a manipulative defendant like Gabrion to delay his own sentencing through dangerous misconduct. It would also set a bad precedent that could be abused by future manipulative defendants. Moreover, the actual prejudice to Gabrion from the jury witnessing this assault may have been less than one would expect, as the assault was consistent with defense counsel’s mitigation strategy of presenting Gabrion as the victim of a mental disease. We therefore hold that the District Court did not abuse its discretion by denying Gabrion’s motion for a mistrial. VIII. Whether the In Camera Conferences between the District Judge and Gabrion’s Defense Counsel Outside of Gabrion’s Presence Violated Gabrion’s Rights Gabrion argues on appeal that the District Court committed reversible error by conducting five in camera conferences outside of his presence over the course of the trial. The only people present at these conferences were the district judge, Gabrion’s defense counsel, a court reporter, and sometimes a law clerk. All of the five conferences occurred on the record. All but the first conference lasted ten minutes or less, and the first conference lasted just less than twenty minutes. At the time of trial, Gabrion was not aware of any of these conferences. Gabrion argues that these conferences violated his constitutional right to due process and his right to be present for every stage of trial under Federal Rule of Criminal Procedure 43. A little background on the conferences is helpful. Three of them dealt with ethical problems stemming from Gabrion’s desire to testify. At the first conference, defense counsel discussed with the district judge how best to balance Gabrion’s right to testify in his defense during the guilt phase of the trial with defense counsel’s fear of being accused of suborning perjury. Defense counsel explained that Gabrion insisted on testifying, but defense counsel believed that Gabrion would lie on the stand. The district judge proposed that Gabrion either could submit questions to his counsel in advance or could testify in narrative form pursuant to specific choreographing. After the conference, the district judge met with Gabrion on the record and admonished him that, although he had a right to testify, his testimony must be truthful and would likely create serious strategic risks arising from cross-examination. Gabrion testified regardless. At the second conference, defense counsel and the district judge reflected briefly on whether they had properly balanced Gabrion’s right to testify with defense counsel’s ethical duties. The fifth conference also involved Gabrion’s desire to testify, but this time at the penalty phase of the trial. The other two conferences dealt with Gabrion’s disruptive courtroom behavior and the legal question of the extent to which Gabrion had a right to control trial strategy. One occurred the morning after Gabrion punched defense counsel Stebbins, at the beginning of the penalty phase of the trial. The district judge had ordered that Gabrion must either view the proceedings remotely or be shackled, wear a stun belt, and sit between two U.S. Marshals. Gabrion’s defense counsel agreed that this degree of restraint was appropriate, but they told the district judge that they had advised Gabrion to stay out of court, so that the jury would not see him in restraints. The other conference occurred later in the penalty-phase proceedings. Gabrion had insisted to his trial counsel that they cross-examine the government’s victim-impact witnesses to accuse those witnesses of murdering Rachel Timmerman. Gabrion’s trial counsel wisely believed that accusing the victim’s family of being her true killers, after the same jury had already adjudicated Gabrion guilty of her murder, would be terrible strategy, but they sought confirmation from the district judge that they could choose not to follow Gabrion’s strategic wishes. At this conference, the district judge agreed. Then, both the district judge and defense counsel discussed the challenge of balancing Gabrion’s right to be present in the courtroom with the risk that his serially disruptive behavior would require repeatedly ejecting him in front of the jury and would subject him to great prejudice. The district judge concluded the conference by emphasizing “how diligently [defense counsel] are working.... and are representing him as well as they can under the circumstances.” A. The Due Process Right to Presence at Proceedings “[A] defendant has a due process right to be present at a proceeding ‘whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.... [T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.’ ” United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (quoting Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934)). The exclusion of a defendant “should be considered in light of the whole record.” Id. at 527, 105 S.Ct. 1482. In Gagnon, the Supreme Court held that the four defendants did not have a due process right to be present at an in camera discussion between the trial judge, a defense counsel, and a juror regarding that juror’s concerns that one of the defendants was drawing sketches of the jury members. Id. The Court emphasized that the defendants “could have done nothing had they been at the conference, nor would they have gained anything by attending.” Id. It was merely “a short interlude in a complex trial.” Id. Even though Gabrion was absent from five brief conferences, rather than just one, we believe that his right to due process was not denied. His absence from the conferences did not have a reasonably substantial relation to his opportunity to defend himself. As his only argument that these conferences prejudiced him, Gabrion contends that his testimony was “devastating” for his case, and that he might have decided not to testify had he observed at the conferences the strong opinions voiced by both his defense counsel and the district judge that he should not testify. But Gabrion’s defense counsel stated on the record that they had already thoroughly warned him of these dangers. And the district judge also warned Gabrion on the record immediately after the first conference and before Gabrion testified during the guilt phase. Both Gabrion’s defense counsel and the district jud