Full opinion text
Opinion for the Court filed PER CURIAM. Opinion concurring in part in Part I filed by Circuit Judge ROGERS. PER CURIAM: Table of Contents I. Batson..................................................................40 A. Batson Framework...................................................40 B. Strike-by-Strike Analysis.............................................42 II. Stun Belts..............................................................44 III. Anonymous Juey.........................................................48 IV. Prosecutorial Misconduct ...............................................50 A. Opening and Closing Arguments........................................50 B. Overview Witness ....................................................54 C. Cumulative Error ....................................................61 V. Rule 404(b) Evidence....................................................63 VI. Brady...................................................................64 VII. Statute of Limitations...................................................65 VIII. Joinder.................................................................68 IX. Confrontation Clause...................................................69 X. Jencks Act..............................................................74 XI. Religious Conversion Testimony..........................................75 XII. Testimony Of Steve Graham..............................................76 XIII. Destruction Of Evidence................................................78 XIV. Multiple Conspiracies Instructions.......................................78 XV. Moore’s Conviction for Continuing Criminal Enterprise ...................80 XVI. Merger Of Moore’s Murder Convictions ..................................81 XVII. Exclusion of Antoine Ward Confession...................................81 XVIII. Smith’s Conviction for Murder of Anthony Dent...........................83 XIX. Smith’s Ineffective Assistance of Counsel Claim..........................85 XX. Conspiracy Withdrawal Instruction ......................................89 XXI. Aiding and Abetting Instruction..........................................90 XXII. Severance..............................................................94 XXIII. Handy’s New Trial Motions ..............................................96 A. Sufficiency of Evidence............................. 97 B. Brady...............................................................98 XXIV. Conclusion.............................................................102 Six defendants appeal from judgments of conviction in the district court on multiple charges, including drug conspiracy, RICO conspiracy, continuing criminal enterprise, murder, and other related charges in violation of federal and District of Columbia laws. They assert a wide variety of alleged errors covering, among other things, evidentiary issues, both as to admission and sufficiency; conduct of the trial; prosecutorial misconduct; and jury instructions. Upon review, we conclude that most of the asserted errors either were not erroneous or were harmless. As to one category of issue involving alleged violations of the Confrontation Clause of the Constitution, a Supreme Court decision intervening between the trial and our consideration of the ease compels us to remand convictions of some drug charges (Counts 126-138) for further consideration by the district court in light of the Supreme Court’s opinion. We also remand for further proceedings a claim of ineffective assistance of counsel raised by appellant Smith (Counts 4 and 5). We vacate one murder conviction as to appellant Moore that, as the parties agree, merges with another conviction (Count 32). According to the indictment in the district court and the evidence of the United States at trial, during the late 1980s and 1990s, appellants Rodney Moore, Kevin Gray, John Raynor, Calvin Smith, Timothy Handy, and Lionel Nunn, along with others, some of whom were also indicted but tried separately, conspired to conduct and did conduct an ongoing drug distribution business in Washington, D.C. In the course of conducting that business, various of the co-conspirators committed a wide-ranging course of violence including 31 murders. The United States obtained a 158-count superseding indictment upon which the defendants were tried by a jury. After a trial lasting over ten months, the jury returned verdicts of guilty on several of the charges, including the drug conspiracy, 21 U.S.C. § 846, the RICO conspiracy, 18 U.S.C. § 1962(d), continuing criminal enterprise (Moore and Gray), 21 U.S.C. § 848(a)-(b), murder, D.C.Code § 22-2401, -3202; D.C.Code § 22-2101; 18 U.S.C. § 1959(a)(1); 21 U.S.C. § 848(e)(1)(A); 18 U.S.C. § 1512, assault with intent to murder (Moore and Gray), D.C.Code § 22-503, -3202, illegal use of a firearm (Moore, Gray, Raynor, Handy, and Nunn), 18 U.S.C. § 924(c), distribution of cocaine base and heroin (Gray), 21 U.S.C. § 841(a)(1), possession with intent to distribute heroin (Raynor), id., and tampering with a witness (Handy), 18 U.S.C. § 1512(b). The trial court entered judgment imposing substantial criminal sentences generally amounting to terms in excess of life imprisonment from which the defendants now appeal. Further details of the facts, evidence, and proceedings will be set forth as necessary for the discussion of the issues raised by appellants. L The Constitution’s equal protection guarantee bars prosecutors from using peremptory challenges to strike prospective jurors on the basis of race. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In this case, although 9 of the 12 jurors were African-American, appellants argue that the prosecution unconstitutionally used its peremptory challenges to remove prospective jurors who were African-American. The district court rejected appellants’ challenge. We affirm the district court’s decision. A Batson challenge proceeds in three steps: First, the defendant must establish “a prima facie case of discriminatory jury selection by the totality of the relevant facts about a prosecutor’s conduct during the defendant’s own trial.” Second, “the State [must] come forward with a neutral explanation for challenging jurors within an arguably targeted class.” Third, the “trial court then will have the duty to determine if the defendant has established purposeful discrimination.” Miller-El v. Dretke, 545 U.S. 231, 239, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (alterations and internal quotation marks omitted). In the district court, appellants argued that the prosecution’s use of 34 peremptory strikes to remove African-Americans from the venire for regular jurors established a prima facie case of discrimination. Accepting that the prima facie hurdle was cleared, the district court required the prosecution to explain each of its peremptory challenges of African-Americans. After the prosecution provided those explanations, the district court required further argument from both sides as part of Batson’s final stage. The court allowed the defense counsel to dispute the validity of each government explanation and required the prosecution to individually respond to the defense’s argument on each disputed strike. The court actively engaged in the entire process, consulting its notes and correcting and questioning counsel. At the conclusion of the multi-hour hearing, the district court ruled that appellants had not “established purposeful discrimination.” Miller-El, 545 U.S. at 239, 125 S.Ct. 2317; see also Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (“[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.”). In this court, appellants dispute the district court’s conclusion that there was no Batson violation. A. Appellants’ challenge to the district court’s Batson decision faces a demanding standard. “On appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.” Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). The Supreme Court has emphasized that the “trial court has a pivotal role in evaluating Batson claims.” Id. The Court has explained that the demeanor of the prosecutor exercising a challenged strike is often “the best evidence of discriminatory intent.” Id. (alterations omitted). The district court, unlike this court, observed the prosecutor’s demeanor firsthand. Further, when the asserted basis for a strike is a prospective juror’s behavior in court, the trial court will have observed and evaluated that juror’s demean- or as well. See id. For those reasons, the Supreme Court has stated that “in the absence of exceptional circumstances, we would defer to the trial court” in resolving a Batson claim. Id. (alterations omitted); see also Hernandez v. New York, 500 U.S. 352, 365-66, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion). Appellants argue that we should reject the district court’s findings because the court itself did not individually discuss each challenged strike on the record. Batson’s third step requires trial courts to closely analyze the prosecutor’s proffered reason for each disputed strike in light of all the relevant circumstances. See Miller-El, 545 U.S. at 241-42, 251-52, 125 S.Ct. 2317. The record here demonstrates that the district court appropriately exercised its Batson responsibilities. The district court required three rounds of argument on each strike of an African-American juror: a prosecution opening in which the government individually justified each strike; a defense response disputing those government explanations; and a prosecution reply to every defense argument. Throughout the hearing, the district court questioned counsel, reviewed its own notes, and corrected mistakes by counsel. The district court then concluded, based on the arguments and its personal observation of the prosecutors and of the prospective jurors’ demeanor, that the government’s race-neutral explanations were genuine. Appellants cite no controlling precedent requiring a trial court to render its decision in a strike-by-strike format. Given the obvious thoroughness of the district court’s application of Batson’s third step, we cannot conclude that the lack of strike-specific findings creates the sort of “exceptional circumstances” that would overcome our deference to the trial court. Snyder, 552 U.S. at 477, 128 S.Ct. 1203. Moreover, the circumstances of this case seriously undermine appellants’ claim. Nine of the 12 jurors seated in this ease were African-American. That jury composition mirrored the make-up of the venire, which contained 68 African-Americans out of 90 persons in the pool from which regular jurors were selected. Thus, while the prosecution used many strikes to remove prospective African-American jurors, that is largely explained by the fact that the jury pool was predominately African-American. In addition, the prosecutor’s strikes did not skew the racial composition of the resulting jury. The circumstances here are a far cry from the facts of cases in which the Supreme Court has found a Batson violation. Cf. Snyder, 552 U.S. at 476, 128 S.Ct. 1203 (all African-Americans in jury pool struck by prosecution); Miller-El, 545 U.S. at 240-41, 125 S.Ct. 2317 (10 of 11 African-Americans in jury pool after dismissals for cause or by agreement struck by prosecution); Batson, 476 U.S. at 100, 106 S.Ct. 1712 (all African-Americans in jury pool struck by prosecution). Finally, in this case there are no extrinsic indicators of racial discrimination of the kind found in successful Batson challenges. For example, in Miller-El, a case in which the trial occurred before the 1986 Batson decision, the Court relied in part on the “widely known evidence of the general policy of the Dallas County District Attorney’s Office to exclude black venire members from juries.” Miller-El, 545 U.S. at 253, 125 S.Ct. 2317. In contrast, the Supreme Court has explained that cases where the stricken jurors are the same race as the majority of victims and prosecution witnesses are unlikely candidates for a finding of racial discrimination. See Hernandez, 500 U.S. at 369-70, 111 S.Ct. 1859 (plurality opinion). The overall facts and circumstances of this case thus do not support appellants’ claim of intentional discrimination. See Snyder, 552 U.S. at 478, 128 S.Ct. 1203 (“[I]n reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.”). B. Although the circumstances of this case strongly suggest that the prosecution did not use its peremptory strikes to discriminate on the basis of race, those facts alone are not dispositive. The dismissal of even a single prospective juror on the basis of race violates equal protection principles. See Snyder, 552 U.S. at 478, 128 S.Ct. 1203. We therefore review each of the 11 strikes challenged by appellants. Cf. Bond v. Beard, 539 F.3d 256, 270 (3d Cir.2008) (finding overall circumstances suggest no Batson violation, but nonetheless conducting analysis of each strike to resolve Batson claim). Of the 11 strikes challenged on appeal, appellants objected to the following seven strikes in the district court. We review the district court’s findings on those seven strikes for clear error. Snyder, 552 U.S. at 477, 128 S.Ct. 1203. Because the district court empanelled an anonymous jury in this case, we identify each prospective juror using the numbers assigned by the district court. 2932: Among its concerns about this prospective juror, the prosecution noted 2932’s statement that long delays in bringing criminal cases to trial impaired witnesses’ memories. The prosecution worried that 2932 would be suspicious of the government’s case because this case involved long delay and the government was relying on witnesses’ memories of long-past events. Appellants do not rebut the plausibility of that specific, race-neutral objection or show that any other seated juror worried about the effect of delay on witnesses’ memories. 3559: The prosecution explained that it struck 3559 on the basis of his youth. The government’s statement that it struck every juror age 22 or younger, regardless of race, remains unrebutted. 3872: The prosecution stated that it struck 3872 for appearing disrespectful in court. Appellants cite trial transcripts in an attempt to demonstrate that seated white jurors might have behaved just as inappropriately. This is an instance in which “[ajppellate judges cannot on the basis of a cold record easily second-guess a trial judge’s decision.” Rice v. Collins, 546 U.S. 333, 343, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (Breyer, J., concurring); see Snyder, 552 U.S. at 483, 128 S.Ct. 1203. We cannot tell from the record whether there was anything inappropriate about those seated jurors’ demeanors. And contrary to appellants’ assertion, Snyder does not establish a rule that trial courts must make specific findings about demeanor. Cf. Thaler v. Haynes, — U.S.-, 130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010). Because appellants have not demonstrated any “exceptional circumstances” that require otherwise, we defer to the district court’s finding on an issue that is “peculiarly within a trial judge’s province.” Snyder, 552 U.S. at 477, 128 S.Ct. 1203. 4463: The prosecutor explained that 4463 appeared unstable in court and that “his voir dire indicated numerous answers that would make clear why the government opposes this juror.” May 7, 2002 PM Tr. at 75. A quick review of 4463’s rambling statements, in which he detailed how his brother had been unfairly framed for distribution of crack cocaine, makes clear why a prosecutor would want to strike 4463, regardless of race. Appellants’ citation to a seated white juror whose family also had drug problems is not comparable. That juror calmly related the long-past problems of his relatives, and expressly stated that his brother had been dealt with fairly. 4730: The government claims to have struck 4730 in part because 4730 was suspicious of law enforcement and unsure that the death penalty should apply in Washington, D.C. Appellants question the strength of 4730’s views on this subject, but they point to no seated juror who expressed reservations about law enforcement similar to 4730’s concern about “rogue police officers,” and a “bad experience” with law enforcement that “[l]eft a bad taste.” Apr. 5, 2002 PM Tr. at 23-24. 4730’s views on law enforcement provided a race-neutral explanation for the prosecution’s decision to strike her. 5698: This prospective juror was a former special police officer whom the prosecutor claimed to have struck for being “quiet,” “submissive,” and possibly not “strong enough” to be an effective juror. May 7, 2002 PM Tr. at 42. To the extent we can discern demeanor from a written transcript, 5698’s colloquy with the district court suggests a passive, uncertain, and quiet person. And passivity can be a plausible, race-neutral reason to exclude a juror. See United States v. Changco, 1 F.3d 837, 840 (9th Cir.1993). Appellants may be correct that former law enforcement officers are often desirable jurors from the prosecution’s perspective. But that does not bar the prosecution from dismissing any particular juror because the government believes her personality would make her a less than desirable juror from the prosecution’s perspective. 5773: The prosecution claimed to have struck 5773 due to 5773’s concerns about imposing the death penalty. Appellants respond that seated white jurors appeared equally hostile to the death penalty. We disagree. As to the seated white juror whose views come closest to matching 5773’s, he repeatedly followed questions about his ability to impose the death penalty with notations such as “I would try to abide by the Court’s instruction, not my personal belief.” By contrast, 5773’s doubts about the death penalty were sufficiently salient that he used his questionnaire to indicate that he had concerns about his ability to be a fair juror. The prosecution thus had legitimate grounds to suspect that 5773 would be significantly more hesitant to impose the death penalty than the seated white juror. In the district court the defense did not object to the prosecution’s strike of the following four prospective jurors. The district court’s rulings on these strikes are therefore reviewed only for plain error. See, e.g., United States v. Charlton, 600 F.3d 43, 50 (1st Cir.2010). 866: The prosecution explained that it struck 866 because 866 “had a relative who had been convicted of murder.” May 7, 2002 PM Tr. at 35. The record shows that 866’s nephew, with whom she was personally close, murdered his wife and was then imprisoned, where 866 believes he was abused by his guards. Appellants’ attempts to minimize the potential effect of 866’s experiences with murder convictions and to draw comparisons to seated jurors who had relatives convicted of much less serious crimes are not convincing. 2486: The prosecution struck 2486 “based on things she said about her prior jury service ... as well as other statements in her questionnaire.” May 7, 2002 PM Tr. at 39. 2486’s questionnaire and the transcript of what she said during voir dire refer to her participation in an acquittal during her prior jury service, which she attributed to the prosecution’s lack of direct evidence. The record also demonstrates 2486’s reticence to impose the death penalty and suspicion of law enforcement competence. Appellants now contend that the prosecutor’s mere reference to 2486’s statements and questionnaire responses is too vague to qualify as a credible, race-neutral explanation. But the prosecution had no reason to give a more detailed explanation, because appellants did not question this strike in the district court. Given that the record referenced by the prosecutor does in fact reflect an objective basis for the prosecutor’s proffered explanation, we cannot say that the district court plainly erred in finding no racial motivation for this strike. 3143: The prosecution claims that it struck 3143 because 3143 demanded a higher standard of proof to impose the death penalty and was generally hostile to the death penalty. On appeal, appellants offer a lengthy comparison of 3143’s views to those of seated white jurors. The government attempts — with considerable success — to distinguish the seated jurors’ views from 3143’s, but the government also has a more telling point: It is difficult to say that the district court plainly erred in not noticing similarities between those seated jurors and 3143, given that none of the six defendants’ lawyers noticed those similarities during jury selection. We reject appellants’ challenge to the prosecution strike of 3143. 3505: The prosecution explained its strike of 3505 based on 3505’s statements in her questionnaire and during voir dire that the death penalty is “never justified.” Appellants do not argue either that the prosecution’s explanation is false or that other seated jurors had the same views. Appellants argue only that 3505 also claimed to be able to set her personal views aside. That in no way implies that the prosecutor considered race in striking 3505. This challenge could not succeed under any standard of review, much less under plain error review. In short, appellants have failed to sufficiently undermine the government’s race-neutral explanations for its peremptory strikes of prospective African-American jurors. Moreover, the circumstances of this case strongly suggest that the prosecution did not discriminate on the basis of race. Especially given the deferential standard under which we review challenges to the district court’s decisions on this issue, we reject appellants’ Batson claims. II. A week before trial began, the government filed a motion requesting that the district court order appellants to wear stun belts during trial. Gray filed written opposition to the motion and, at a pretrial hearing five days later, all appellants opposed the motion orally. Feb. 27, 2002 PM Tr. at 36-52. The court granted the government’s motion, id. at 57, and issued a memorandum opinion in support of its order, see United States v. Gray, 254 F.Supp.2d 1 (D.D.C.2002). Appellants contend that the district court violated their due process rights when it ordered them to wear stun belts at trial. The right to a fair trial is a fundamental liberty secured by the due process guarantee of the Fifth and Fourteenth Amendments. Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Invoking this fair trial right, the Supreme Court has stated that certain government practices during criminal trials prejudice defendants because they offend three “fundamental legal principles,” Deck v. Missouri, 544 U.S. 622, 630, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005): (1) that “the criminal process presumes that the defendant is innocent until proved guilty,” id.; (2) that “the Constitution, in order to help the accused secure a meaningful defense, provides him with a right to counsel,” id. at 631, 125 S.Ct. 2007; and (3) that “judges must seek to maintain a judicial process that is a dignified process,” id. When a government practice is prejudicial because it either inherently or in a particular defendant’s case offends these principles, the Court has forbidden district courts from utilizing the practice unless it is justified by an essential state interest, such as courtroom security or escape prevention, specific to the defendant on trial. See, e.g., Deck, 544 U.S. 622, 125 S.Ct. 2007; Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986); Estelle, 425 U.S. 501, 96 S.Ct. 1691. Accordingly, the Supreme Court has held it is inherently prejudicial to require a criminal defendant to wear jail garb during trial and therefore, because no state interest is ever served by the practice, it violates his fair trial right. See Estelle, 425 U.S. at 505, 512-13, 96 S.Ct. 1691. Similarly, the Court has held that visibly restraining a criminal defendant during either a criminal trial or the penalty phase of a capital prosecution is inherently prejudicial and thus is permissible only when justified by an essential state interest specific to the defendant. See Deck, 544 U.S. at 629, 125 S.Ct. 2007. In contrast, the Court has held that deployment of security personnel in a courtroom is not inherently prejudicial, and is thus permissible, regardless of the state interest served, as long as it is not actually prejudicial in a particular case. See Holbrook, 475 U.S. at 568-69, 572,106 S.Ct. 1340. Applying these lessons to the case before us, if the use of stun belts to restrain criminal defendants at trial either is inherently prejudicial or in this case was actually prejudicial to the defendants, the district court had the obligation to determine whether the belts were justified by an essential governmental interest specific to the defendants on trial. Appellants, who argue that stun belts are inherently prejudicial, contend that the district court failed to meet this obligation for three reasons. First, they assert that the district court failed to make an individualized determination of whether a stun belt was needed to restrain each defendant. Second, they argue that the district court was required but refused to hold an evidentiary hearing to resolve factual disputes they raised concerning the visibility of, necessity for, and alternatives to the stun belts. Finally, appellants maintain that the district court erroneously failed to consider how the stun belts would affect appellants’ right to communicate with counsel and assist in their own defense. On review, we hold that, even assuming that stun belts are inherently or were actually prejudicial, the district court did all that was required of it. In review of a district court’s authorization of an inherently or actually prejudicial governmental practice, we find error only when the district court has abused its discretion. See Deck, 544 U.S. at 629, 125 S.Ct. 2007 (“[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.”); United States v. Wardell, 591 F.3d 1279, 1293 (10th Cir.2009); United States v. Durham, 287 F.3d 1297, 1304 (11th Cir.2002). It is true, as appellants say, that prior to authorizing the use of an inherently or actually prejudicial government practice, the district court must consider each defendant before him and determine whether the practice serves an essential interest in the particular trial at hand. Deck, 544 U.S. at 624, 633, 125 S.Ct. 2007; Holbrook, 475 U.S. at 568-69, 106 S.Ct. 1340. However, the district court did just this. In a memorandum opinion, the court carefully analyzed the following factors in its decision to require stun belts: I) the seriousness of the crimes charged and the severity of the potential sentences; 2) the numerous allegations of threats of violence made by the defendants against witnesses; 3) previous guilty pleas or convictions of a substantial number of the defendants to prior gun charges and/or violent crimes; 4) allegations of gang activity, and the likelihood that associates or rivals of the alleged gang may be present at the trial; 5) the opinion of the U.S. Marshal for this District, particularly as it relates to knowledge of security in this courthouse and of cases of this nature; 6) potential prejudice to the defendants from the use of the stun belts; 7) likelihood of accidental activation of the stun belts; 8) potential danger to the defendants if the belts are activated; 9) the availability and viability of other means to ensure courtroom security; 10) the potential danger for the defendants and others present in the courtroom if other means are used to secure the courtroom; and II) the existence of a clear written policy governing the activation of stun belts worn by defendants. Gray, 254 F.Supp.2d at 4. Finding that “[e]ach of the eleven factors” militated in favor of imposing stun belts, the district court concluded that the use of stun belts would “best preserve ... the security of the courtroom.” Id. at 4-6. The district court’s memorandum opinion demonstrates that it considered the security concerns presented by the particular defendants at trial before making the determination that stun belts were appropriate. It thoroughly examined factors relevant to each defendant and, in the exercise of its broad discretion, made a determination based on those factors. That appellants shared many of the same characteristics (e.g., they were charged in the same conspiracy, they all faced either the death penalty or life sentences) does not mean the district court failed to consider them individually. And that the district court reached a result with which the defendants disagree does not mean it abused its discretion. We also reject appellants’ contention that the district court was obligated to hold an evidentiary hearing. When making the discretionary decision whether to authorize an inherently or actually prejudicial government practice at trial, “[a] formal evidentiary hearing may not be required, but if the factual basis for the extraordinary security is controverted, the taking of evidence and finding of facts may be necessary.” United States v. Theriault, 531 F.2d 281, 285 (5th Cir.1976); cf. United States v. Law, 528 F.3d 888, 903-04 (D.C.Cir.2008); United States v. Microsoft Corp., 253 F.3d 34, 101 (D.C.Cir.2001) (holding that district courts are not required to conduct evidentiary hearings pri- or to issuing relief in civil cases when “there are no disputed factual issues regarding the matter of relief’). Although the defense pointed out that due to the short notice of the hearing the evidence before the district court about how stun belts functioned was provided entirely by the government and there had “to be another side of the story with respect to the proffers that [the government has] made,” appellants did not allege any specific inaccuracy or misrepresentation. Feb. 27, 2002 PM Tr. at 44-46. While appellants disputed the government’s contention that other measures would be inadequate to secure the courtroom, id. at 49, this dispute is, in essence, the ultimate question the district court must answer. See Durham, 287 F.3d at 1304 (“[A] decision to apply leg shackles to the defendant ‘must be subjected to close judicial scrutiny to determine if there was an essential state interest furthered by compelling a defendant to wear shackles and whether less restrictive, less prejudicial methods of restraint were considered or could have been employed.’ ” (quoting Elledge v. Dugger, 823 F.2d 1439, 1451 (11th Cir.1987) (per curiam))). Appellants must make a more specific factual challenge. The only specific factual matter relevant to the district court’s determination about which the government and appellants meaningfully disagreed was whether the stun belts would be visible. Feb. 27, 2002 PM Tr. at 38, 44, 56-57. However, in its memorandum opinion, the court accepted appellants’ contention that there was some risk the stun belts would be visible. The court then specifically ordered precautions to reduce the visibility of the belts. The opinion states: “Although the Court does not believe that it is likely that any juror will see the stun belts, the Court will take precautions to minimize prejudice to the defendants. The defendants will be brought into the courtroom before the jury is brought in, and will be escorted from the courtroom after the jury has left.” Gray, 254 F.Supp.2d at 4. Under these circumstances, we hold that the district court acted within its discretion when it declined to hold an evidentiary hearing. Turning to appellants’ claim that the district court erred by not considering the effect of stun belts on appellants’ ability to confer with their counsel and participate in their defense, we again find no error. As discussed above, whether wearing a stun belt affects a criminal defendant’s ability to confer with counsel and participate in his defense is one of the three questions relevant to the determination of whether, before authorizing such a restraint, a district court must first determine whether it is justified by an essential governmental interest specific to the defendant on trial. When the district court made the appropriate findings to determine that the use of stun belts was so justified in appellants’ case, the court implicitly assumed that the belts did risk negatively affecting appellants’ abilities in this way. It was not required to revisit this question in its substantive decisionmaking process. We also note that while appellants direct us to case law that warns abstractly of the potential harm of stun belts, see, e.g., Durham, 287 F.3d at 1305-06, they have offered us no evidence stun belts in any way affected their communication with their counsel or their participation in their defense. Moore also repackages appellants’ arguments that the district court abused its discretion by authorizing stun belts into an objection to the court’s refusal to grant his post-trial motion for a new trial. Before the district court Moore argued that he was entitled to a new trial because “a sufficient factual predicate did not exist” to justify the district court’s authorization of stun belts. Def. Moore’s Mot. for New Trial at 2 (June 8, 2003). He also maintained that a new trial was warranted because his stun belt was activated, outside the presence of the jury. On appeal, Moore argues that he was physically and psychologically injured by the activation of the stun belt and that these injuries interfered with his ability to communicate with his attorney and assist in his own defense. Moore’s stun belt was activated on November 12, 2002, while trial was ongoing but before trial had started on that day. Nov. 12, 2002 AM Trial Tr. at 8. Defense counsel reported the incident to the court and asked the court to consider taking a break. Id. at 97. The court did so and, after reconvening, announced that it had asked a nurse to examine Moore and that the nurse had reported that Moore “fe[lt] that the use of the device was unjustified,” but that he was “physically ... all right” and “was willing to go forward today.” Id. at 98. Moore’s counsel did not challenge these representations or otherwise object further. Id. We reject Moore’s claims. That Moore’s stun belt was activated does not undermine the district court’s reasoned decision, which we have upheld, to require him to wear a stun belt. Insofar as Moore now claims that the district court violated his constitutional rights not by requiring him to wear the belt but by continuing the trial after the belt’s activation, we again find no error. As noted, the district court acceded to the request for a break by Moore’s counsel, who never disputed the representation by the nurse, who had examined Moore, that Moore was ready to proceed with the trial. III. Appellants contend that the district court erred in empaneling an anonymous jury insofar as the prospective jurors’ names, addresses, and places of employment were withheld. Our review is for abuse of discretion, despite appellants’ contention that the de novo standard applies because “constitutional principles are involved.” Appellants’ Br. at 73. The court rejected this view in United States v. Childress, 58 F.3d 693 (D.C.Cir.1995), a case concerning (in part) whether “the use of anonymous juries violates the Constitution,” id. at 702 (emphasis added), because “[djecisions on ... anonymity require a trial court to make a sensitive appraisal of the climate surrounding a trial and a prediction as to the potential security or publicity problems that may arise during the proceedings,” id. In United States v. Edmond, 52 F.3d 1080 (D.C.Cir.1995), the court advised that “[i]n general, the [district] court should not order the empaneling of an anonymous jury without (a) concluding that there is a strong reason to believe the jury needs protection, and (b) taking reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected.” Id. at 1090 (first alteration in original) (citation and quotation marks omitted). In determining whether such protection is warranted, the court has found its analysis aided by five factors identified by the Eleventh Circuit: (1) the defendant's involvement in organized crime, (2) the defendant’s participation in a group with the capacity to harm jurors, (3) the defendant’s past attempts to interfere with the judicial process, (4) the potential that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties, and (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation or harassment. Id. at 1091 (quoting United States v. Ross, 33 F.3d 1507, 1520 (11th Cir.1994)). Finding that all five factors were satisfied here, the district court granted the government’s motion for an anonymous jury. As justification, the district court noted that appellants were charged in the superseding indictment with participating in a drug and RICO conspiracy that involved multiple acts of violence using firearms, in addition to threatening potential witnesses and preventing individuals from cooperating with law enforcement, and that if convicted appellants faced the maximum penalty of death or life imprisonment. Pointing to two Washington Post articles, the district court noted that this case had garnered media attention capable of increasing the potential danger to jurors. See United States v. Gray, No. 00-cr-157, at 12-13 (D.D.C. Feb. 7, 2002) (resolving pretrial motions). Appellants challenge the district court’s decision to empanel an anonymous jury on three grounds. None is persuasive. First, appellants maintain that the district court’s decision was unfounded because the superseding indictment did not allege any history of juror intimidation. This argument misunderstands and too narrowly construes the requirements set forth in Edmond. As the court explained, “we do not believe such evidence [of jury tampering] is necessary in every case. Rather, we think the District Court ... reasonably could have ascertained a threat to jurors from the charges in the indictment.” Edmond, 52 F.3d at 1091. Here, the particular allegations of “multiple acts of violence to prevent individuals from contacting law enforcement,” Gray, No. 00-er-157, at 13 (Feb. 7, 2002), were sufficient, viewed in context, for the district court to be concerned about appellants’ capacity to harm jurors and interfere with the judicial process. See Edmond, 52 F.3d at 1091-92. As support, the district court cited the factual findings set forth in its November 15, 2001 memorandum regarding appellants’ history of interfering with the judicial process, in resolving various discovery and evidentiary disclosure requests. See United States v. Gray, No. 00-cr-157, at 5-12 (D.D.C. Nov. 15, 2001). Second, appellants maintain that media interest in this criminal prosecution would not endanger jurors’ safety. The district court identified two Washington Post articles covering appellants’ case as a prosecution brought against “Murder, Inc.” Both articles appeared on the front page of the Metro section and described the number of alleged murders as historic and unprecedented. Such evidence of “initial media interest,” United States v. Wilson, 160 F.3d 732, 746 (D.C.Cir.1998), in a high-profile prosecution of a major drug conspiracy involving multiple defendants over a substantial period of time and alleged purposeful and random acts of murder supports the district court’s decision. Third, appellants suggest that the district court failed to take reasonable precautions to minimize any potential prejudice to them as a consequence of juror anonymity. In granting the motion for an anonymous jury, the district court advised that it would “use a questionnaire and extensive voir dire to examine the jurors’ backgrounds” and, in addition to instructing jurors that appellants were presumed innocent until proven guilty, “provide a neutral explanation to the jurors regarding their anonymity.” Gray, No. 00-er-157, at 13 (Feb. 7, 2002). These precautions were, in fact, taken. A combination of instructions downplaying the significance of jurors’ anonymity and a lengthy voir dire questionnaire can adequately safeguard a defendant’s fundamental rights. See, e.g., Childress, 58 F.3d at 701-02; Edmond, 52 F.3d at 1092-93. Here the neutral instruction, set forth in the jury questionnaire, informed jurors that they would meet at specific locations to be escorted to and from the courthouse “for [their] convenience as well as to assure both the government and the defense that no one has attempted to contact, communicate, or influence the jury.” For voir dire, the 46-page jury questionnaire — at least double the length of the jury questionnaires that passed muster in Childress and Edmond— provided appellants with “a broad variety of personal information, including the quadrant of the city in which jurors resided, their educational history, marital status, military service, employment status and work description, their spouse’s and children’s employment, and their experience with crime, drugs, and law enforcement.” Edmond, 52 F.3d at 1092. This sufficed “to compensate for the information denied by juror anonymity” because “[i]t elicited information ... far more extensive and detailed than the generalizations appellants might have drawn from jurors’ mere names and addresses.” Id. Appellants have pointed to no particular example of prejudice. Accordingly, we hold that the district court, having made the necessary findings under the Edmond factors, did not abuse its discretion in granting the government’s motion for an anonymous jury. IV. Appellants raise numerous claims of prosecutorial misconduct, including inflaming the passions and prejudices of the jury, vouching for and bolstering the credibility of witnesses, soliciting testimony to that effect, denying appellants a presumption of innocence through elicitation of improper opinion testimony, and violating appellants’ Sixth Amendment right by introducing evidence that they associated with and often sought the advice of legal counsel. We have reviewed these claims and limit our discussion to those having arguable merit, and concluded that even when appellants’ claims are viewed cumulatively, they fail to show a violation of their due process rights as would entitle them to a new trial. A. Opening and Closing Arguments. Appellants contend that the prosecutor’s opening argument to the jury was improper and substantially prejudiced the trial proceedings by interfering with the jury’s ability to properly assess the evidence. Our review of allegedly improper prosecutorial arguments is for substantial prejudice where the defendants lodged an objection, but we apply the plain error standard where they failed to object. See United States v. Small, 74 F.3d 1276, 1281 (D.C.Cir.1996); see also United States v. Catlett, 97 F.3d 565, 573 (D.C.Cir.1996). When, as here, the alleged prosecutorial misconduct forms the basis for an unsuccessful motion for a mistrial, our review of the district court’s denial of that motion is for abuse of discretion. See Small, 74 F.3d at 1284. This court has identified three factors that guide the determination whether improper remarks in closing and opening statements prejudiced a defendant so as to warrant reversal, under either the substantial prejudice or plain error standard: “(1) the closeness of the case; (2) the centrality of the issue affected by the error; and (3) the steps taken to mitigate the error’s effects.” United States v. Beaton, 601 F.3d 588, 598 (D.C.Cir.2010); see also United States v. Gartmon, 146 F.3d 1015, 1026 (D.C.Cir.1998). In addition, this court will presume “that a jury acts with common sense and discrimination when confronted with an improper remark from a prosecutor and owes deference to the district court’s assessment of such a statement’s prejudicial impact on the jury.” United States v. Childress, 58 F.3d 693, 716 (D.C.Cir.1995) (citation and internal quotation marks omitted). The Supreme Court has described the federal prosecutor as occupying a position of public trust: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); accord Taylor v. United States, 413 F.2d 1095 (D.C.Cir.1969). It follows from this rigorous standard that, in making opening and closing arguments, a prosecutor has an obligation “to avoid making statements of fact to the jury not supported by proper evidence introduced during trial,” even when the misstatements are made in good faith. Gaither v. United States, 413 F.2d 1061, 1079 (D.C.Cir.1969). Equally well settled, “[a] prosecutor may not make comments designed to inflame the passions or prejudices of the jury.” United States v. Johnson, 231 F.3d 43, 47 (D.C.Cir.2000); see Childress, 58 F.3d at 715. These general principles apply to, and inform the particular function of, the government’s opening and closing arguments in a criminal trial. 1. “The purpose of an opening statement is to provid[e] background on objective facts while avoiding prejudicial references,” and hence “[t]he prosecutor’s opening statement should be an objective summary of the evidence reasonably expected to be produced, and the prosecutor should not use the opening statement as an opportunity to poison the jury’s mind against the defendant or to recite items of highly questionable evidence.” United States v. Thomas, 114 F.3d 228, 247 (D.C.Cir.1997) (alterations in original) (citations and internal quotation marks omitted). So understood, prosecutorial misconduct exists where the government’s argument touches upon facts prejudicial to the defendant that the government fails to support by admissible evidence at trial. See Small, 74 F.3d at 1283. On the other hand, a prosecutor’s reference in opening argument to the defendants as “two armed gunmen driving through the streets of D.C., armed to the teeth, dressed for action, carrying a load of dope,” although strong and vivid, was not prosecutorial misconduct because the statement was supported by ample evidence introduced at trial. United States v. Moore, 104 F.3d 377, 390 (D.C.Cir. 1997). The prosecutor’s opening argument appears to have improperly departed from the standard in Berger and applied to opening arguments by this court. As in Small, 74 F.3d at 1283, it appears “the prosecutor came close to the line ... in several instances and crossed it in others.” For example, appellants were charged with committing 31 murders, and the prosecutor’s repeated use of the word “execute” at the start of the trial seems to run afoul of the concern expressed by the court in United States v. Jones, 482 F.2d 747, 753 (D.C.Cir.1973), in stating the court could “not condone” the prosecutor’s reference during closing argument to the defendant as an “executioner.” More generally, the opening argument includes a number of instances where the prosecutor went beyond merely providing an “objective summary of the evidence.” Thomas, 114 F.3d at 248 (citation and quotation marks omitted). Such statements referring to the murdered victims as “[wjhere there once was face and life, now there is nothing but empty black space.... Where there once was life, now there’s death,” May 9, 2002 PM Trial Tr. at 113, are neither based on evidence nor free from innuendo. Rather, they attempt to appeal to the jury’s emotions by dramatic effect. See Childress, 58 F.3d at 715. Although other statements listing the 31 murder victims by names and dates on which they were killed are grounded in admissible evidence that the government intended to introduce at trial, this evidentiary nexus became tenuous once the prosecutor began discussing the victims’ first days of school, favorite songs, families, mothers, fathers, coffins, and funerals. Cf. United States v. Dominguez, 835 F.2d 694, 700 (7th Cir.1987). Indeed, the district court recognized that although the prosecutor’s opening argument “was fairly factually stated” it contained “some hyperbole,” May 9, 2002 PM Trial Tr. at 127, a disfavored technique, see United States v. North, 910 F.2d 843, 895 (D.C.Cir.1990); United States v. Bouck, 877 F.2d 828, 831 (10th Cir.1989); Dominguez, 835 F.2d at 701. Although the government is not required to make its opening argument in a rote manner, the court has admonished that “an opening statement to the jury should be carefully phrased to avoid overstatement.” Thomas, 114 F.3d at 248. It is the government’s opportunity to present the jury with argument based “on objective facts while avoiding prejudicial references.” Id. at 247 (emphases added) (citation and quotation marks omitted). 2. “The sole purpose of closing argument is to assist the jury in analyzing the evidence,” and hence courts have recognized that the prosecutor (as well as defense counsel) is afforded some leeway in “stat[ing] conclusions drawn from the evidence,” United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir.1997) (citation and quotation marks omitted); see also Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); 6 Wayne R. LaFave et al„ Criminal Procedure § 24.7(b) (3d ed.2007). “[I]n closing argument counsel may not refer to, or rely upon, evidence unless the trial court has admitted it.” United States v. Maddox, 156 F.3d 1280, 1282 (D.C.Cir.1998); see also Small, 74 F.3d at 1280. But the prosecutor may, for instance, draw inferences from evidence that support the government’s theory of the case so long as the prosecutor does not intentionally misrepresent the evidence. See United States v. Deloach, 530 F.2d 990, 1000 (D.C.Cir.1975). Indeed, the prosecutor “may strike hard blows,” but not “foul ones.” Berger, 295 U.S. at 88, 55 S.Ct. 629. Because the line between permissible and impermissible arguments will not always be clear, the inquiry is necessarily contextual. See Catlett, 97 F.3d at 572; Deloach, 530 F.2d at 999-1000. Some statements by the prosecutor during closing argument appear problematic. Illustrative is the prosecutor’s invitation for the jurors to “imagine Scott Downing,” one of the murder victims, in “the last few minutes of [his] life.” The prosecutor told the jury: Scott Downing is bound with duct tape. It’s pitch black in the back of that U-haul. He does not know what’s going to happen to him. He must — he must wonder if he’s going to live through this night.... He’s taken out of that U-haul. He tries to talk but he can’t. All he can do is mumble. He feels the grass under his body. He feels the gravel of the road.... And then a gun is placed to the back of his head and two bullets. Nov. 21, 2002 AM Trial Tr. at 112-13. On appeal, the government responds, in a footnote, that this narrative “had sympathetic overtones” only “[a]t a superficial level” because the jury heard evidence that Downing had been kidnapped, bound and gagged, and shot by the side of the road. Appellee’s Br. at 96 n. 68. This response, however, misses the fundamental distinction between permissible and impermissible closing arguments. In summarizing evidence supporting conviction, a prosecutor may not take artistic license with the trial evidence, construct a more dramatic version of the events, provide conjecture about a victim’s state of mind, and then defend against a prosecutorial misconduct claim by maintaining the statements are “fact — based.” Sensationalization, loosely drawn from facts presented during the trial, is still a “statement ] of fact to the jury not supported by proper evidence introduced during trial,” Gaither, 413 F.2d at 1079, clearly “designed to inflame the passions or prejudices of the jury,” Johnson, 231 F.3d at 47. Although not as egregious as comparing appellants to Hitler, as occurred in North, 910 F.2d at 895, there are, as every prosecutor knows, limits to striking “hard blows,” Berger, 295 U.S. at 88, 55 S.Ct. 629. 3. Nonetheless, assuming, as appellants contend, that prosecutorial misconduct occurred during the arguments to the jury, it did not substantially prejudice appellants. Although the specific arguments to which appellants object appeared at times to address central issues in the case, there was overwhelming evidence of appellants’ guilt of the crimes implicated by the prosecutor’s purported misconduct, and the district court gave general limiting instructions on the arguments of counsel to the jury at the beginning of the trial, after the prosecutor’s opening argument, and during the final instructions to the jury before it began deliberating. See Thomas, 114 F.3d at 249; Gaither, 413 F.2d at 1079. Appellants’ reliance on United States v. Moore, 375 F.3d 259 (3d Cir.2004), is misplaced. In that case the prosecutor’s closing argument compared the defendant to a 9/11 “terrorist” on the eve of the first anniversary of those events and referenced irrelevant evidence that the defendant was forcing children to sell drugs. Reversal of the convictions, however, was based on the fact that “[i]nadmissible evidence and highly inflammatory statements came rolling in unimpeded” throughout the trial in such a pervasive manner as to undermine the soundness of the jury verdict. Id. at 263-65. This court applies a similar standard to the prejudice inquiry: “[Ajbsent ‘consistent and repeated misrepresentation’ to influence a jury, ‘[ijsolated passages of a prosecutor’s argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions’ ” of severe misconduct; by contrast, “tainted closing arguments that follow on the heels of improper and indecorous prosecutorial conduct during trial are more likely to amount to the type of severe misconduct that justifies reversing a conviction.” North, 910 F.2d at 897 (second alteration in original) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 646, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). But unlike in the Third Circuit case, that standard is not met in the instant case. Here, the severity of what appellants have identified on appeal as misconduct was limited to relatively small portions of lengthy opening and closing arguments. See United States v. Monaghan, 741 F.2d 1434, 1443 (D.C.Cir.1984). As this court has observed on occasion, “the length of time between the prosecutor’s opening statement and jury deliberations” — seven months in the instant case — “makes it unlikely that specific allegations in the opening profoundly influenced those deliberations.” United States v. Williams-Davis, 90 F.3d 490, 508 (D.C.Cir.1996). Moreover, the district court repeated its general limiting instruction that the statements of counsel are not evidence at the outset of the trial and following the prosecutor’s opening argument, May 9, 2002 PM Trial Tr. at 114, and again after closing arguments in giving final instructions to the jury, see Dec. 9, 2002 AM Trial Tr. at 72. This is usually a strong ameliorative consideration for prosecutorial misconduct during opening, see Thomas, 114 F.3d at 249, and closing argument, Childress, 58 F.3d at 716; North, 910 F.2d at 897; United States v. Hawkins, 595 F.2d 751, 754-55 (D.C.Cir.1978). Although the type of general instruction given here is not a guarantee for the government as necessarily mitigating the prejudicial effects of prosecutorial misconduct in arguments, see North, 910 F.2d at 897 n. 33, this is not a “particularly egregious case[ ]” that would require additional cautionary and limiting instructions, and the defense did not request them, Thomas, 114 F.3d at 249 (citation and quotation marks omitted). Under the circumstances, we conclude, assuming prosecutorial misconduct during opening and closing arguments to the jury, that the misconduct did not impermissibly and prejudicially interfere with the jury’s ability to assess the evidence. B. Overview Witness. More problematic is the government’s use of a Federal Bureau of Investigation (“FBI”) agent as an overview witness. FBI Agent Daniel Sparks testified as the first witness in the government’s case-in-chief. His testimony provided an overview of the government’s case, setting forth for the jury the script of the testimony and evidence the jury could expect the government to present in its case-in-chief. Further, he expressed his opinion, based on his training and experience, about the nature of the investigation conducted in this case. Appellants contend that the use of an overview witness as the government’s first witness improperly permitted the government, over defense objections, to elicit FBI Agent Sparks’s opinions about the charged crimes, the reasons for appellants’ actions in various circumstances, the nature of the charged conspiracy and the relationships between co-conspirators, including the cooperating co-conspirators who testified as government witnesses, and the strength of the evidence — all before the government had presented any such evidence. Appellants suggest that FBI Agent Sparks’s testimony left the impression for the jury that it should accept that the co-conspirator cooperating witnesses would fully and truthfully recount the events and impressions that he outlined in his testimony. Hence, the question is whether such overview testimony is permissible, and even if permissible with respect to the FBI agent’s description of aspects of the preindictment investigation of which he had personal knowledge, whether the overview witness’s testimony here caused substantial prejudice to appellants. Our conclusions are not affected by whether appellants’ challenge is viewed as a question of prosecutorial misconduct, as appellants contend, or a claim of abuse of discretion by the district court in admitting inadmissible evidence, United States v. Watson, 409 F.3d 458, 462 (D.C.Cir.2005); United States v. Microsoft Corp., 253 F.3d 34, 101 (D.C.Cir.2001). Until recently this court had not addressed the appropriateness of a government overview witness at the outset of its case, but had identified the “obvious dangers posed by summarization of evidence” by a non-expert witness called by the government during its case-in-chief in United States v. Lemire, 720 F.2d 1327, 1348 (D.C.Cir.1983). The analysis in Lemire is instructive. In that case, the government called toward the end of its case-in-chief an FBI agent, who was also a certified public accountant, “to summarize the evidence about the complex cash flow through offshore companies” in a prosecution for wire fraud, interstate transportation of proceeds of fraud, and conspiracy. Id. at 1346. The FBI agent “used four sum