Full opinion text
ROGERS, J., delivered the opinion of the court in which McKEAGUE, J., joined, and WHITE, J., joined in part. WHITE, J. (pp. 379-98), delivered a separate opinion concurring in part and dissenting in part. OPINION ROGERS, Circuit Judge. Rejón Taylor appeals his convictions and death sentence for carjacking resulting in death, kidnapping resulting in death, and using a firearm to commit murder while committing carjacking and kidnapping. His appeal raises fifteen issues, none of which warrants reversal or remand. The district court described the crimes underlying this case as follows: [Taylor] had been responsible for various thefts and burglaries from [Guy] Luck’s house and other nearby residences in Atlanta between 2001 and 2003. On August 6, 2003, [Taylor], along with codefendants Sir Jack Matthews and Joey Marshall, went to Luck’s house with the intention of robbing him. After confronting Luck at gunpoint, Marshall guarded Luck while [Taylor] began looking through Luck’s house. Inside the house, [Taylor] took around $600 or $800. Marshall testified [Taylor] later told him there was a warrant or other document connected with [Taylor’s] arrest on theft charges in another case, which suggested Luck could be a witness against [Taylor], At gunpoint, Luck was forced outside his house and into his van. [Taylor] got in the driver’s seat, while Matthews guarded Luck in the back. [Taylor] and Matthews each had a gun. [Taylor] drove the van onto Interstate 75 and traveled north from Atlanta. They made a brief stop at a gas station in north Georgia before eventually crossing into southeast Tennessee, where [Taylor] exited the expressway and drove into the Chattanooga suburb of College-dale. During the trip, Marshall followed behind in a car registered to [Taylor’s] mother. As [Taylor] drove the van around relatively isolated roads in Collegedale, there was a confrontation in the back of the van, in which Matthews fired a shot, which hit Luck in the arm. [Taylor] turned around from the driver’s seat and fired three shots at Luck. The third bullet hit Luck in the mouth and caused his death later that day at Erlanger Hospital. [Taylor] and Matthews left their guns in the van and walked briskly from the van to the car driven by Marshall. They then drove back to Atlanta. [Taylor] was subsequently arrested and incarcerated pre-trial at the Hamilton County Jail in Chattanooga. While incarcerated there, [he] was part of a group of inmates that attempted to escape. United States v. Taylor, 583 F.Supp.2d 923, 926-27 (E.D.Tenn.2008). A jury convicted Taylor of carjacking resulting in death, kidnapping resulting in death, and using a firearm to commit murder while committing carjacking and kidnapping. The jury recommended a death sentence, which the district court imposed. The question in this case is whether particular acts or omissions in the course of Taylor’s trial require remand. Taylor has identified fifteen potential grounds for reversal or remand. Ground I: Juror Bias Taylor first argues that the district court should have more strenuously questioned Juror 1 (later determined to be the foreperson) to determine whether exposure to an out-of-court remark affected her ability to be impartial. Taylor claims that the district court’s failure to do so — or to replace Juror 1 with an alternate juror— requires remand for resentencing. While it might well have been advisable for the district court to ask more questions of Juror 1, the district court did not abuse its discretion in declining to press on with the questioning once the district court satisfied itself that Juror 1 had not been prejudiced by the out-of-court remark. The jury found Taylor guilty on September 8, 2008. Just over a week later, on the eve of the sentencing hearing, the Government announced its intention to use at the hearing recordings of phone calls Taylor made from jail after the verdict. In one of those calls, the Government indicated, Taylor allegedly referred to the jurors as “racist rednecks.” Local media reported the alleged remark. On September 19, 2008, Taylor’s counsel moved for a mistrial and asked that the district court question the jurors outside the presence of counsel about their exposure to media reports of Taylor’s reported remark. Taylor’s counsel expressly declined the opportunity to participate in or be present at the questioning, theorizing that the jurors might be less forthcoming in his presence. The Government agreed that questioning by the court was appropriate and so, on September 23, 2008, the district court questioned each of the jurors and alternates privately, without the parties or their lawyers being present. The district court told the jurors that, because of the break between the guilt phase and the sentencing phase, the attorneys had asked the court to make sure that none of the jurors had been exposed to publicity about the trial. Eleven of the eighteen jurors and alternates reported that they had been exposed to publicity about the trial. The district, court asked all but one of the jurors who had heard about a “racist” or “redneck” remark whether the remark would affect their decision and whether they could put the remark out of their minds. All of the jurors who were asked assured the district court that the remark would not affect their ability to be impartial. The district court questioned Juror 1 as follows: THE COURT: The lawyers, just as a matter of precaution more than anything else, asked if I would meet with each one of the jurors this morning to make sure that no one was exposed to any publicity during the break. The break was pretty long. And I did not see any harm in acquiescing in their request, so I agreed to do so. During the break were you exposed to any publicity at all about the trial? JUROR 1: Well, I’ll have to say that the only thing that really — and I did not read or anything — just that I’ve had a couple people say, “I didn’t know you were a redneck.” So, you know, obviously there are some comments that have been made along those lines. But, no, sir, I have not read anything or seen anything. And the only reason I knew we were going to talk today is because I turned the TV on, after turning off Dancing with the Stars last night, it was on Channel 3, and it said, “Judge Collier is going to talk — ” I couldn’t get it off fast enough. So ... THE COURT: You did not follow up on the conversations, then, when people said they did not know you were a redneck? JUROR 1: No. I obviously have speculated. In your head ... THE COURT: Did they tell you where that comment came from? JUROR 1: Not necessarily, no, sir. I assumed it was from either the defendant or some of his friends. My colleague said to me last Tuesday — we were there Wednesday — “We knew you’d be here today.” I said, “You did?” So they knew about it, but ... I said, “I can’t talk about it.” THE COURT: Well, we are working when you guys are not here. We’re still doing things. JUROR 1: I understand that. - But evidently they knew we weren’t. . THE COURT: Okay. Well, thank you. JUROR 1: Oh, a couple of things I’d like to ask if I may. THE COURT: Uh-huh. (Moving head up and down.) JUROR 1: Is it the usual procedure that the defendant knows the jurors’ names? I’ve had some concern, you know. It is a murder trial, after all. And there might be some repercussions down the pike, of being found and something happening, with friends. Is that normal for jurors’ names to be called? I know polling the jury, but is there a reason it couldn’t be Juror 1, Juror 2, that kind of thing? THE COURT: We collect the information once the jury is impaneled. We give a long list, including information, and we have a standing — is it a rule, or just an order? — a practice that we collect the information. We don’t— THE CLERK: I’m not sure if it’s an order. I know Mari puts a cover sheet on the jury list that it’s to be returned. THE COURT: To be returned as soon as the jury is selected. The lawyers might have some of their own notes with names on it, but defendants would not have that. JUROR 1: Okay. THE COURT: They would have to have an extremely good memory to recall all of that. And we don’t put addresses on anything. So even if someone remembered a name, it would take quite an effort to go further than that. JUROR 1: Well, with the Internet nowadays, it’s not so tough. So, you know, there was some concern. My husband and I, that’s the only thing we’ve talked about. So, thinking about getting a weapon. I didn’t bring my purse. Okay. After reviewing the jurors’ and alternates’ responses, Taylor moved for a mistrial due to incurable juror prejudice. In the alternative, Taylor requested a hearing during which counsel could question the jurors and alternates and after which the district court could decide whether to dismiss the entire jury or remove the most “taint[ed]” jurors. The district court heard argument on Taylor’s requests and ultimately denied them both. Noting “the obvious risk” of reinforcing the allegedly prejudicial publicity by further questioning jurors and alternates about it, the district court observed that a simple stipulation— that Taylor “never said [racist rednecks]” — could resolve the issue without running the risk of further juror prejudice. In a memorandum and order elaborating on its ruling, the district court stated: In this case, the Court had the benefit of personally interviewing the jurors. From these interviews, it was evident that those who were aware of the comment were not nearly as impacted by the comment as one might imagine. Most of the jurors who were aware of the comments heard them from co-workers who joked that they were rednecks. Most of those jurors did not know what the jokes referred to and many did not attribute the comments to [Taylor] at all. From their responses to the questioning, it was evident that they had brushed off the comments and diligently followed the Court’s admonishments to avoid outside publicity and not consider anything they heard outside the courtroom. To the extent there might be some prejudice, the Court is convinced it can be cured by an instruction. “Based upon its interviews with jurors,” the district court concluded, it was “confident that the verdict ... will not be based on emotion.” The district court further stated that Taylor’s request for a hearing to investigate potential juror prejudice had béen satisfied by the district court’s juror interviews, “especially given that defense counsel proposed the arrangement.” The court also reasoned that further questioning of the jurors “would obviously be detrimental to [Taylor]” because it “could bring the comments to the forefront of jurors’ minds and cause jurors to connect the statements to [Taylor].” Taylor appeals the district court’s decision, but only with respect to Juror 1. The district court did not abuse its discretion by declining to ask Juror 1 explicitly about bias resulting from her exposure to Taylor’s “redneck” remark, although an explicit question certainly would have been preferable. When a juror is exposed to unauthorized communications involving a case, the district court must “determine the circumstances [of the communications], the impact [of the communications] upon the juror, and whether or not [the communications were] prejudicial.” Remmer v. United States, 347 U.S. 227, 229-30, 74 S.Ct. 450, 98 L.Ed. 654 (1954). The district court retains considerable discretion in deciding how to conduct such an inquiry, which our decisions have labeled a “Remmer hearing.” See Mays v. Chandler, 342 Fed.Appx. 159, 166-67 (6th Cir.2009). This discretion serves at least two important functions. First, it recognizes that district courts are uniquely qualified to ascertain the communication’s effect on the jurors and to determine the procedures that should be employed to deal with it. See, e.g., Evans v. Young, 854 F.2d 1081, 1084 (7th Cir.1988); United States v. Almonte, 594 F.2d 261, 266 (1st Cir.1979). Second, some degree of discretion is the only alternative to the sort of bright-line rule — for example, one requiring district courts to explicitly inquire whether a juror was prejudiced by a particular communication whenever that juror is found to have been exposed to the communication — that might actually exacerbate juror bias by “unnecessarily highlighting] the [communication] in the eyes of the jurors.” United States v. Mack, 729 F.3d 594, 606 (6th Cir.2013). Upon learning that Taylor’s remark had been publicized, the district court asked every juror and every alternate about his or her exposure to Taylor’s remarks. The district court asked each juror and alternate who reported a direct familiarity with the remark whether he or she could remain impartial as a juror. Juror 1 had not heard about the remark directly; she knew about it only because some friends of hers had joked that they had not known she was a redneck. She drew certain inferences from those statements and speculated about their source, but did not actually know who made the remark. Juror l’s uncertainty about the nature of the remark and its origin left the district court with a difficult choice: leave the matter alone or press for more information and risk drawing further attention to the remark in Juror l’s mind. Particularly given that Juror 1 was uncertain about who had made the remark and what exactly had been said, the risk of exacerbating the comment’s potentially prejudicial effects may have outweighed the benefits of further questioning. The district court was also best positioned to assess Juror l’s demeanor and behavior during the one-on-one interview, just as it was best positioned to assess the other jurors’ demeanor and behavior. When both parties subsequently asked the district court to inquire further of the jury, the court explicitly relied on its observations of the jurors’ demeanor and behavior to explain why further questioning was not only unnecessary but unwise. This does not appear to be a case in which the district court simply forgot to ask an important question. Indeed, the district court made a point of asking several other jurors whether they could be fair and impartial. The district court does not appear to have made a careless or thoughtless decision. To the contrary, despite multiple invitations to revisit the issue, the district court repeatedly reaffirmed its earlier conclusion that the remark had no meaningful effect on the jurors, including Juror 1, explaining that the jurors “who heard the remarks did not seem biased by them,” and that an alternate’s testimony suggested Taylor’s “comment sparked jokes and laughter among jurors; there was no indication jurors took the comment personally.” Finally, none of Juror l’s comments at the hearing inherently suggested any sort of bias arising from the allegedly prejudicial remark. Rather, she appeared to have brushed the remark off and to have been more concerned about other aspects of the case. That view is certainly consistent with the alternate juror’s observation that the remark had no meaningful effect on the jury’s members. Nothing in the record, in short, establishes the sort of obvious prejudice that would have required the district court to question Juror 1 further. Accordingly, Taylor has not carried his burden of establishing that the district court abused its discretion. The cases that Taylor cites — particularly United States v. Davis, 177 F.3d 552 (6th Cir.1999) and United States v. Herndon, 156 F.3d 629 (6th Cir.1998)—are different. In Davis, for example, the court learned that one juror had found out from an outside source that the people in his part of town were aware of the juror’s jury service and were discussing the juror’s role in the proceedings. 177 F.3d at 556. The court also learned that the juror had shared the information — and his concerns for his safety — with other members of the jury. Id. Rather than investigating the extent to which the out-of-court communication and the juror’s unauthorized communications about the case had affected the remaining jurors, however, the district court simply discharged the troubled juror and went ahead with the case. Id. We vacated the Davis defendants’ convictions and remanded for a post-trial hearing at which the defendants would bear the burden of demonstrating the existence of jury taint, without which a retrial would not be necessary. Id. at 557. Our holding was based on the fact that the district court had made no inquiry into potential juror prejudice from the improper communications. Id. We relied on the fact that the juror in question “was clearly motivated by fear of retaliation from the defendants,” and the “fact that a number of jury members openly agreed that a person in [the juror’s] predicament should seek to be removed” from the jury. Id. We also relied on the total absence of a court effort to delve into the extent to which the juror’s comments affected the other jurors’ deliberations. Id. Neither of those factors is present in Taylor’s case. In particular, the district court, at the parties’ behest, conducted individualized conferences with the jurors to determine whether they had been prejudiced by the reported remark. Herndon is likewise distinguishable. There, a juror recalled during the trial that he may have had prior business dealings with the defendant, but the district court declined to investigate — or to allow counsel to investigate — the potential for prejudice arising from those dealings. Herndon, 156 F.3d at 632-33. Concluding that the prior business dealings constituted an extraneous influence upon the juror, we vacated the defendant’s sentence and remanded for a Remmer hearing, on the ground that the district court had not provided any opportunity for the defendant to prove actual bias. The district court in Herndon rejected the request of Hern-don’s counsel to question the juror, and conducted no questioning of its own. Id. at 632. The only hearing was at the sentencing hearing, more than three months after conviction, at which the juror was of course not present, and the nature of which this court described as clearly “not an investigation” but permitting the defendant to “make a record” for the purposes of appeal. Id. at 632-33, 637. In Taylor’s case, by contrast, the district court asked all of the jurors about the extent to which they were aware of the reported remark. The court’s course of interviewing without the presence of counsel was with the consent of counsel. The record of the interviews gave Taylor the required opportunity to establish juror bias. Herndon, therefore, does not require vacatur or remand. Taylor’s argument focuses not on the total lack of an opportunity to establish bias, but on the district court’s not having questioned the jurors as extensively as Taylor would have liked. He points to United States v. Corrado, 227 F.3d 528 (6th Cir.2000), and Goins v. McKeen, 605 F.2d 947 (6th Cir.1979), to support his point, but those cases are distinguishable because the district courts’ investigations of potential prejudice plainly fell short of what the law requires. In Corrado, for instance, we remanded for a hearing where, in response to an outsider’s attempt to bribe an unidentified juror, the district court merely “directed three broadly-worded questions to the jury as a group and instructed any jurors who [felt they could not remain impartial] to bring themselves to the court’s attention by writing a note.” 227 F.3d at 536. The district court’s “ ‘minimalist’ approach,” we held, “was an inadequate response to the serious and credible allegations of extraneous influences on the jury in th[at] case.” Id. at 535. The jury in Goins was similarly exposed to a prejudicial out-of-court communication — this time a newspaper article containing details of the defendant’s plea process, which suggested that the defendant had negotiated to plead guilty to a lesser charge. 605 F.2d at 954. This evidence was “strongly probative of guilt.” Id. at 953. Because the communication contained the type of “extremely prejudicial information” that “rendered the circumstances [surrounding a potential verdict] inherently prejudicial,” we held that the district court had to do more than merely inquire of the jury — en masse and in open court — whether any of the jurors had been exposed to the prejudicial communication and whether those who had could still be fair and impartial fact-finders. Id. at 954. Here, by contrast, the district court made a deliberate and concerted effort to investigate potential juror prejudice. Not only did the district court question the jurors in camera, one at a time, but it repeatedly asked follow-up questions when the need arose. The district court’s efforts here, then, were not at all like the cursory inquiries that were not adequate in Corvado and Goins. Finally, United States v. Walker, 1 F.3d 423 (6th Cir.1993), is distinguishable because of the highly prejudicial communication at issue in that ease. In Walker, jurors were mistakenly shown portions of a transcript that had not been entered into evidence. Id. at 427. The defendants explicitly requested that the district court allow them to question the jurors about the effect of the transcript on their ability to be impartial, which request the district court denied altogether. Id. at 430. We remanded, holding that “denying the reasonable request to inquire into the jurors’ states of mind” deprived the defendants “of the opportunity to meet their burden of proving actual juror bias,” and that the defendants were thereby denied a fair trial. Id. at 431. Walker involved double exposure to selected testimony — a problem whose power to improperly influence “has long been recognized.” Id. at 430. The “unauthorized and uncontrolled ‘read back’ ” in Walker “created a substantial potential for undue emphasis and a special hazard that limited testimony may be taken out of context.” Id. In contrast, the information in Taylor’s case did not involve information that was even indirectly relat-. ed to guilt or innocence. • Moreover, as the district court observed, when questioned individually, none of the jurors seemed bothered by the remark. Indeed, many of them (including Juror 1) had not even read the- coverage of the remark. By the time sentencing actually began, almost three weeks had passed since the media reported the remark, so that there was “every reason to believe any remarks jurors heard w[ould] be out of their minds.” These circumstances are materially different from those in Walker. ■ There is a world of difference between failing to conduct a Remmer hearing and failing to ask a particular question at that Remmer hearing. The former is flatly unconstitutional. But we have never held that a defendant is entitled to resentencing simply because the district court did not incant magic words during a Remmer hearing. All that Remmer requires is that the defendant be given an opportunity to prove juror bias, see Walker, 1 F.3d at 431, not that he be given the opportunity to prove juror bias based on answers to predetermined questions. Neither Taylor nor the dissent points us to any case holding that a Remmer hearing ceases to function as such if the district court fails to ask any of the jurors a particular question, such as whether a communication affected their ability to be fair and impartial in discharging their duties. There are good reasons that the law does not flatly require district courts to ask any juror exposed to an out-of-court communication whether the communication biased her. A district court’s role in conducting a Remmer hearing is to “determine the circumstances [of the allegedly prejudicial communication], the impact thereof upon the juror and whether or not [the communication] was prejudicial.” Remmer, 347 U.S. at 229-30, 74 S.Ct. 450. Making those determinations necessarily entails consideration of more than just the substance of a juror’s answer; it requires a court to evaluate the juror’s mannerisms, deportment, tone, delivery, and other elements. The law does not require district courts to disregard those elements in many cases — even when they clearly indicate to the district court that the juror was not biased by the out-of-court communication — and, instead, press forward with questioning in a way that might actually magnify the significance of the prejudicial communication in the juror’s mind. While it probably would have been preferable for the distript court to have asked Juror 1 if her knowledge of Taylor’s remark affected her ability to be impartial, an arguably questionable decision is not the same thing as an abuse of discretion. The record in this case does not establish that the district court’s decision not to inquire further of the foreperson was an abuse of discretion, and Taylor’s first claim is accordingly without merit. Ground II: Exclusion of Testimony Taylor argues that the district court erred in excluding some of the testimony by James Aiken and Dr. Mark Cunningham, ostensibly regarding Taylor’s “future dangerousness.” His argument fails for two reasons. First, the testimony at issue was not responsive to the Government’s arguments about Taylor’s future dangerousness, so that the district court did not abuse its discretion in refusing to admit the testimony as rebuttal evidence. Second, because the excluded testimony did not pertain to Taylor’s character, behavior, or the circumstances of his crime, it did not constitute relevant mitigating evidence. The context for the excluded proffered testimony is as follows. The Government relied on evidence from both the guilt and sentencing phases of trial to support the non-statutory aggravating factor of future dangerousness. In the guilt phase, the Government presented testimony about Taylor’s attempt to escape from jail. Taylor, Marshall, and Matthews were being held in the Hamilton County, Tennessee jail on their federal charges. Taylor and Marshall became involved in an escape plan with three older inmates: Steven Sza-bo, J.R. Uhuru, and Thaddeus Reed. According to Marshall, Szabo, Uhuru, and Reed told Taylor about their plan to escape, and Taylor told Marshall. The plan was for Uhuru to hit one guard, for Reed and Szabo to restrain two guards, and for Taylor and Marshall to take the guards’ radios and keys. Uhuru acquired a length of pipe and flattened it to use to cut through the wire mesh in the cell window. The group also saved sheets and tied them together to use to climb down from their third-floor cells. Taylor arranged for his mother to have a vehicle waiting outside. In his guilty plea agreement, Szabo stated that Taylor was the leader of the conspiracy to escape. In his testimony, Szabo indicated that Uhuru gathered the items needed and punched the guard. During the escape attempt, Taylor helped one of the older inmates hold an officer down. Guards broke up the fight and ordered the inmates back to their cells. In the sentencing phase, the prosecution introduced a letter that Taylor wrote to Heather Hamilton on September 12, 2008. In the letter, Taylor predicted his conviction would be overturned and wrote: “So many people want to do something to [Marshall]. Next time I go to trial, I bet he won’t testify against me. Trust me on that.” The letter also described Taylor’s methods of identity theft. After Taylor learned that the jail was monitoring his calls and letters, he used another inmate’s name to send a letter to Hamilton. Finally, according to FBI Special Agent Melia, Marshall’s grandmother or godmother told him that someone tried to break into her house, and that a relative in Taylor’s neighborhood had every window broken out of her home. Taylor’s counsel presented James Aiken to testify in mitigation. He stated that he had worked in prisons since 1971. He was warden of a South Carolina prison, worked with the United States Bureau of Prisons (“BOP”) and prisons in Indiana, the Virgin Islands, and the supermax prison in Florence, Colorado, and has consulted across the United States. Aiken explained that prisons use internal classification systems to separate the most aggressive members of the prison population from the least aggressive. He told the jury that, in the federal system, officials consider the inmate’s age, build, criminal background, medical condition, gang membership, institutional behavior, sentence, and type of crime. Of these factors, the sentence and type of crime are the most important. Aiken predicted that Taylor would go to a high security setting. There would be a gun between Taylor and the public as long as he lives, and he would be accounted for continuously. Aiken was asked about Taylor’s escape attempt. Aiken said that the county jail’s security did not compare to that of a high security federal facility. Aiken testified that BOP protocols, experience, and design would make the chance of an escape from a federal facility extremely remote. The district court cut off defense counsel’s question about how the BOP separates inmates who have conflicts, such as gang members, and inmates who have testified against other inmates or committed crimes together, and counsel agreed to move on to another subject. Aiken stated that Taylor was five feet, eight inches tall, weighed one hundred and forty to one hundred and fifty pounds, and looked extremely youthful. The district court sustained the prosecution’s objections to questions about what daily life in prison would be like for Taylor as far as security is concerned at BOP institutions. In doing so, the court stated that defense counsel had gone much further than the parameters of this witness’s testimony. He was called to the stand to testify that the witness would be transferred from Hamilton County Jail to a federal prison facility someplace — no one knows what facility he will be going to ... and that whatever facility he goes to will have better security than the Hamilton County Jail. The district court subsequently elaborated: The witness can testify that, based upon his experience, that the defendant will be transferred from the Hamilton County Jail to a Bureau of Prisons institution — no one knows what institution that will be at this point; that is unknowable — and that whatever institution he goes to will have better security than exists at the Hamilton County Jail. Defense counsel objected. On cross-examination, Aiken testified that Taylor’s behavior while in the county jail would not cause him to be placed in the highest level of security in the BOP. He also testified that even high security federal facilities have escape attempts. On redirect, Aiken said that the BOP had the most secure facility in the world, which kept total control of every aspect of the inmates’ lives, but that Taylor would not be sent to it. If Taylor were sentenced to death, he would be sent to death row at a high security prison. Also, if Taylor were sentenced to life, he would be sent to a high security prison. Aiken explained that escape-prevention security measures at a high security BOP facility include monitoring devices, barriers, and firepower. Inmates are subject to strip searches and their communications are monitored. BOP officers take note of inmates’ demeanor, cell contents, telephone calls, and television habits. There are special housing units for those who violate the rules. Clinical and forensic psychologist Dr. Mark Cunningham also testified on Taylor’s behalf. Dr. Cunningham has practiced, researched, and taught psychology since 1983 and written about death row inmates, violence in prisons, and capital sentencing. He has also testified over 200 times in state and federal court. Dr. Cunningham interviewed eleven members of Taylor’s family to prepare for his mitigation testimony. He acknowledged that Taylor had a choice regarding his crime, but said that people do not all get the same choices. Factors that stand between a person and bad outcomes include an intact family, acceptance, affirmation, stability, structure, and modeling of positive values. A family history of addiction, psychological disorder, child abuse, abandonment, or instability can lead to bad outcomes. Dr. Cunningham referred to a 1995 Department of Justice (DOJ) study that sought to identify risk factors for criminal activity. Dr. Cunningham gave over sixty transcript pages of testimony applying these factors to Taylor, testimony that was not interrupted by objection or court limitation. Dr. Cunningham said that from birth to age 6, Taylor was exposed to criminal behavior, substance abuse, family management problems, family conflict, and inappropriate parental attitudes to crime and substance abuse. From age 6 to adolescence, Taylor was exposed to violence and crime, changed households, firearms, media portrayals of violence, poor family management and conflict, poor parental attitudes and involvement in crime and substance abuse, lack of commitment to school, and delinquent and violent peers. Taylor’s family tree includes several members with criminal records, including an aunt, uncle, cousin, and older brother. Family members also abused alcohol and drugs, and had children out of wedlock. Dr. Cunningham was especially concerned by the fact that Taylor’s mother had a history of antisocial or criminal behavior because that trait is more strongly inherited from the mother than the father. Taylor’s mother accepted Taylor’s father’s criminal activity and did not guide or discipline her children. She worked up to twenty hours a day. Taylor’s father committed burglaries at age 12, shot someone when he was 13 or 14, committed murder at age 17, committed armed robbery at 19, and was in prison for theft and robbery from age 21 to 29. Taylor’s mother helped his father escape from prison, and helped Taylor in his attempted escape from jail. As a child, Taylor had prison visitations with his father up until he was 3. He had no contact with his father again until age 8. In Taylor’s middle childhood, his father was open about his criminality and involved his family. Taylor’s father’s criminal activity included robbery, identification theft, and fraud. He had stacks of cash in his home and handguns in his house and car. Taylor and his brother moved in with their father. Taylor’s brother began dealing drugs as a teenager. He accumulated thousands of dollars and gave drug money to Taylor. Dr. Cunningham concluded that Taylor had numerous risk factors that correlate with increased violence and crime. Dr. Cunningham next discussed Taylor’s “wiring.” He noted that Taylor was 18 or 19 at the time of the offense, and that the brain continues to develop until the age of 25. Adolescents are prone to both reactive impulsivity and judgment impulsivity. Dr. Cunningham testified that there is a high mortality rate in adolescents because they put themselves in dangerous situations. Young adults’ reward centers go “on line” before their braking systems. Dr. Cunningham reviewed the findings of studies on adolescent and young men, which showed them to be much more likely to be violent' than older males. The district court sustained the Government’s objection when Dr. Cunningham was asked about security levels in the BOP. The district court permitted Taylor’s counsel to proffer testimony by both Aiken and Dr. Cunningham that was not presented to the jury. Aiken said that prisons use classification systems to manage inmate populations by separating violent, predatory inmates from the normal, passive prison population. He testified that he reviewed Taylor’s jail records as of January 2008. He said that Taylor would be looked at as prey in prison and would have to be protected until he became seasoned. Aiken stated that, based on Taylor’s crime and sentence, incapacitation would be the driving force of his security classification. Aiken said that Taylor would start at a penitentiary and could be placed in protective custody to guard against sexual assault, extortion, gang activity, and contraband. Because Taylor would not be returning to the community, the goal would be to stabilize him. He would be constantly watched, evaluated, and subject to searches for contraband. The prison would control every aspect of his daily life. Aiken asserted that the BOP can safely control, manage, and contain Taylor for the remainder of his life without undue risk to staff, inmates, and the general community. Aiken was asked about Taylor’s attempt to escape from the Hamilton County Jail. Aiken said that the BOP has higher security standards that would make an escape attempt less likely. Aiken gave the probability of a successful escape from a BOP facility as nil. He testified that United States Penitentiaries are high security and have no public access. There is always á gun between the prisoner and the community. Within a penitentiary, an inmate can be locked up in a secure housing unit (SHU) for disciplinary reasons. In Dr. Cunningham’s proffered testimony, he said that a capital inmate sentenced to life in federal prison would be sent to a “United States Penitentiary or higher” security level facility. Federal prisons are termed minimum, low, medium, and high security, and there are SHUs within prisons. The most secure facility is a supermax in Colorado. A high security institution has double fencing, gun towers, patrols, perimeter detection devices, and multiple barriers. Dr. Cunningham reviewed the BOP’s procedures for dealing with dangerous prisoners. He opined that the BOP can securely house and control inmates. When asked about future dangerousness and rates of violence, Dr. Cunningham testified that the BOP groups inmates by their convictions, personality characteristics, and other means. He cited statistics indicating that, from 2004 to 2005, 94% of prisoners did not assault anyone. There were three homicides in a population of 20,000 inmates. Dr. Cunningham explained that a jury would not know how often violence occurs in the BOP and how effective that system may be in containing violence. He indicated that much of the differences in violence levels system-wide is accounted for by differences in institutions rather than differences in the prisoners. Also, homicide rates are significantly higher outside of prison than inside. Dr. Cunningham also testified that murderers are disciplined less than other inmates and are less likely to be violent in prison. For federal capital offenders sentenced to life, their rates of violence are similar to those of other inmates. State prisoners sentenced to life without parole are half as likely to commit assault. Dr. Cunningham drew three conclusions from DOJ publications: violence in the community is not strongly or consistently associated with violence in prison; a prisoner’s current offense, prior convictions, and escape history are weakly associated with misconduct; and the severity of the offense does not predict a prisoner’s adjustment to prison. The district court found that Dr. Cunningham’s proffered testimony was far afield from his area of expertise, not relevant, and based on hearsay. The court concluded that the evidence had nothing to do with Taylor and was misleading, confusing, and unreliable. In arguing in favor of admitting the evidence, Taylor’s counsel argued among other things that “[mjost jurors think we’re talking about Club Fed. And the only way they can learn the difference is for a man like Mr. Aiken and Dr. Cunningham to tell them the difference.” Rather than relying on oral rulings from the bench, the district court explained the basis for its exclusion of parts of the testimony of Mr. Aiken and Dr. Cunningham in a written memorandum. The explanation is thoughtful, respectful of relevant precedent, and compelling. It is best appreciated by extended excerpt: General prison security is not a proper mitigating factor because it is unrelated to the defendant’s background, record, or character, or any other circumstance of the offense, 18 U.S.C. § 3592(a)(8), or any other mitigating factor required by the Constitution and the FDPA. In United States v. Johnson, the Seventh Circuit concluded a defendant “should not have been permitted to present to the jury, as he was, evidence of the existence of maximum-security federal prisons decked out with control units, in order to establish a mitigating factor.” 223 F.3d 665, 674-75 (7th Cir.2000). “The argument that life in prison without parole, especially if it is spent in the prison’s control unit and thus in an approximation to solitary confinement, sufficiently achieves the objectives aimed at by the death penalty to make the latter otiose is an argument addressed to legislatures, not to a jury.” Id. at 675. In addition, the government cites Johnson for the argument that Defendant’s argument is inherently illogical, “as it amounts to saying that because this defendant is so dangerous, he does not deserve to be sentenced to death, since his dangerousness will assure his secure confinement. And its illogic shows that it is really an argument against the death penalty, period, since if this defendant should be spared because he is unusually dangerous, surely less dangerous murderers should not be executed either, even though, because they are less dangerous, they are less likely to be confined securely.” Id. While Johnson disapproved of this evidence as a mitigating factor, it approved of it in a proper case as rebuttal evidence to counter future dangerousness, which the government has alleged as a non-statutory aggravating factor in this case, although not of the nature involved in Johnson. Id. at 674-75. Defendant quotes from the Supreme Court’s decision in Skipper v. South Carolina, which held “evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating.” 476 U.S. 1, 5, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). But the evidence in Skipper concerned the defendant’s good behavior in prison, not security information about the prison. The Supreme Court has not addressed the right of a capital defendant to present evidence of prison security considerations. Schmitt v. Kelly, 189 Fed.Appx. 257, 265 (4th Cir.2006) (concluding state court’s refusal to allow such evidence was not an unreasonable application of federal law). However, a federal district court has joined the Seventh Circuit in holding such testimony is admissible in rebuttal: Because it will be obvious to the jury that the Government’s proof of this factor is intended to show that Wilson, rather than criminals in general, is a future danger, it will be equally obvious to the jury that [the expert’s] testimony, though based on statistical evidence, is intended to shed light on Wilson’s future dangerousness, not on that of anyone else. And because the Government will argue for the death penalty based in part on Wilson’s alleged future dangerousness, this court must give Wilson “fair opportunity to present argument as to the adequacy of the information to establish the existence” of that aggravating factor. 18 U.S.C. § 3593(c). United States v. Wilson, 493 F.Supp.2d 491, 508 (E.D.N.Y.2007). The Wilson court, however, prohibited testimony about any specific institutions as unduly speculative. Id. The evidence would be especially important in rebuttal because the FDPA and Constitution both require Defendant have a fair opportunity to rebut the government’s evidence. 18 U.S.C. § 3593(c); Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Davis v. Coyle, 475 F.3d 761, 771 (6th Cir.2007) (holding state court improperly refused to admit evidence of defendant’s adaptation to prison because it was clearly relevant to future dangerousness); see also Johnson, supra, 223 F.3d at 674-75. In this case, however, the proffered testimony clearly was not rebuttal evidence. The FDPA allows Defendant to “rebut any information received at the hearing.” 18 U.S.C. § 3593(c). Although “the hearing” appears to refer to the sentencing phase, it can only logically be read as referring to the entire trial since the government’s evidence at the guilt/innocence phase is part of the basis for the jury’s sentencing decision. Thus, Defendant has the right to rebut information and evidence received through the entire trial. This right to rebut relates to information or evidence, not allegations. If the government alleges something but has no evidence to support it, the jury will ignore it and there is nothing to rebut. Accordingly, it is important to examine exactly what evidence or information the government presented and not be confused by its allegations or claims. At trial, the government’s evidence regarding future dangerousness, in the light most favorable to the government, showed that Defendant was involved in an attempt to escape from custody; wrote a letter which contained a statement that could constitute a threat against codefendant and witness Joey Marshall; could have been involved in vandalism and damage to Marshall’s grandmother’s home; and was able to send letters to third parties from the Hamilton County Jail in someone else’s name. The government rested in the sentencing phase of the case so there is no possibility of other evidence in its case in chief. The above was the extent of the government’s evidence of future dangerousness, which Defendant is entitled to rebut. This evidence, if believed by a rational juror, could support a conclusion that Defendant might be involved in or might influence others to commit harm to others, including prison staff and other inmates. Based on the evidence, no rational fact finder could conclude Defendant is likely to personally injure someone while in custody, whether a fellow inmate or a prison staff member. This is especially true given the jurors’ observation of Defendant’s slight build and physique. Prison security conditions do not have any relevance to the government’s evidence. The defense has set up a chimera, which they seek to destroy by introducing rebuttal testimony. Had this been a case where there was evidence the defendant was, to use Mr. Aiken’s terminology, a “predator” with a propensity to personally harm others, then the defense would have a better argument. With a proper witness, such evidence might be admissible. However, this is not that case. Appropriate rebuttal to the government’s evidence in this case would be information that it would be impossible for Defendant to ever communicate with anyone outside of prison for the rest of his life or that he would not be able to influence any other inmates while in prison. And, of course, with the proper witness, such as a psychologist, testimony would be proper either as mitigating evidence or rebuttal that Defendant did not possess the personal qualities to harm others either directly or indirectly and would be unlikely to ever develop those personal qualities. At the conclusion of the live proffer of Aiken’s testimony, considering the proper scope of rebuttal evidence, the Court indicated Aiken could testify that after the trial Defendant will be transferred from the county jail where he is currently detained, and from which he allegedly tried to escape, to a Bureau of Prisons facility, where security would be different and greater. But the Court prohibited Aiken from testifying about any specific institution Defendant may be sent to or about general conditions of federal prisons. Until the Bureau of Prisons selects a facility for Defendant, it would be speculative to testify about where Defendant may be sent and what security measures may be in place at such facilities during the future times in which Defendant will be incarcerated. Although there are commonalities among the security conditions at all federal prisons, these are unrelated to any mitigating factor. Because the conditions in federal prisons are unrelated to the circumstances of this offense or to Defendant, and because they do not rebut evidence or information introduced at trial, the Court prohibited most testimony about them. Even though the Court had limited Mr. Aiken’s testimony as described, after the government had completed its cross-examination, the defense on redirect examination of Mr. Aiken brought out a great deal of information regarding Bureau of Prisons policies, procedures, general prison conditions and typical life in prison. The government did not object to this testimony even though it exceeded the permissible scope of the witness’s testimony, so it was presented to the jury. After the testimony of Mr. Aiken, the defense called Dr. Mark Cunningham as a witness. Dr. Cunningham is a clinical and forensic psychologist and was tendered to the Court as an expert. He gave lengthy and extensive testimony regarding Defendant’s family, family history, development, and other matters regarding Defendant. This testimony included his expert opinion regarding the effect of various influences in Defendant’s life on Defendant’s development and life choices. Subsequently, however, Dr. Cunningham began testifying as a fact witness regarding the federal Bureau of Prisons, particular federal prison facilities, and Bureau of Prisons policies, regulations and procedures, prison classification, prison security, and crime conditions in prisons. Upon objection by the Government the Court sustained the objection. Thereafter, the Court sent the jury out of the courtroom and provided the defense the opportunity to have Dr. Cunningham present his entire testimony to the Court. During this session out of the presence of the jury, Dr. Cunningham testified at considerable length and utilized a slide show pertaining to the rate of violence among various segments of the prison population, risk analysis among federal prisoners in capital cases, rates and correlations of prison violence, and the capability of the federal Bureau of Prisons to prevent inmate violence. With the benefit of Dr. Cunningham’s entire testimony, the Court reiterated its decision to sustain the objection. The Court explained that the objection was sustained for two reasons: in large measure the testimony was not relevant to any issues involved in this case and Dr. Cunningham was not qualified to give some of the testimony. For these reasons Dr. Cunningham’s testimony was unreliable, would mislead the jury about the true issues of future dangerousness involved in this ease, and would impermissibly confuse the jury. The major problem with Dr. Cunningham’s disallowed testimony is its irrelevance to the issues in this case. The essence of his testimony is that individuals imprisoned in federal prisons are not likely to commit crimes. This is indisputably true but it has nothing to do with this case. As explained above, the government has introduced no evidence that Defendant is likely to pose a danger of personally injuring another inmate in prison or personally attacking a prison staff member. So even if Dr. Cunningham had offered his opinion, which he did not, that Defendant was not likely to personally injure another inmate or a staff member, such opinion testimony would not rebut anything involved in this case. Permitting his generalized testimony about prison crime would simply confuse and mislead the jury and invite a decision on an impermissible basis. For the same reason the Court disallowed testimony from Mr. Aiken regarding prison security, Dr. Cunningham’s testimony about the capability of the Bureau of Prisons to secure inmates is not relevant to any issues in this case. The second problem with Dr. Cunningham’s disallowed testimony was that much of it is not expert testimony but rather is fact testimony, so he is testifying not as an expert but as just another fact witness. As a fact witness he must have direct or first hand knowledge of the facts about which he testifies. It is permissible for a witness to testify both as a fact witness and as an expert. But the case law indicates the Court must make it clear to the jury the distinction between the two roles. Even though the rules of evidence are relaxed in the sentencing phase of the trial, the Court is still obligated to ensure that the information being presented is minimally reliable, can be tested, and is not confusing or misleading. From Dr. Cunningham’s testimony, the facts he related often came from second, third, or fourth hand sources. Those sources are not available for questioning in this trial. The third problem with Dr. Cunningham’s disallowed testimony was that some of it amounted to instructing the jury on the law. His mention of Bureau of Prisons policies, regulations, and procedures were matters of law that are properly within the province of the Court and that witnesses are not allowed to discuss in trials. To the extent such information would be relevant in a case, it should be provided to the jury by the Court and not by witnesses. Moreover, Dr. Cunningham’s testimony had nothing to do with the personal characteristics or record of Defendant but rather was about an extraneous body, i.e., the federal Bureau of Prisons. The capability or lack of capability of the Bureau of Prisons says nothing about the individual background, record, or character of Defendant or the circumstances of this case. Dr. Cunningham’s testimony may concern the background, record, and character of the Bureau of Prisons and the employees of that institution, but not Defendant. And of course it can be expected that the capability of the Bureau of Prisons will vary over time and will even vary within particular constituent parts of the organization. This focus on the Bureau of Prisons ignores that we are concerned with a living, breathing human being with thoughts, passions, instincts, goals, ambitions, motivations, and all the other intangibles that make us human beings. Regardless of how capable the Bureau of Prisons is, a highly motivated individual who desires to harm others poses a threat. Perhaps it is a preventable threat but it is still a threat. Lastly, because Dr. Cunningham’s disallowed testimony could be given verbatim in any capital case in the country without changing a single word, it runs afoul of what the Supreme Court said should be the foundation of capital sentencing: an individualized inquiry. Jones v. United States, 527 U.S. 373, 381, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). Testimony regarding hundreds or thousands of prisoners in groups, in many unidentified prisons, in circumstances that the jury could never know precisely, would run the risk of the jury losing sight of its obligation to focus on the individual before it, the defendant, his character or record, and the circumstances of the offenses. Individualized sentencing of a capital defendant is one of the most important decisions the jurors will ever make in their own lives- and testimony regarding generalities of prison invites the jury to make decisions based upon group characteristics and assumptions. This presentation, as the Seventh Circuit said in Johnson, could be directed to Congress to convince it there is no need for the death penalty, rather than to a jury. Taylor, 583 F.Supp.2d at 936-43. There is not any abuse of discretion in this analysis. The excluded portion of Aiken’s testimony was not relevant rebuttal evidence on future dangerousness, because none of it rebutted any of the Government’s future dangerousness arguments. At no point in the proceedings did the Government seriously contend — or even intimate — that Taylor was personally dangerous. Indeed, any such argument would have been patently absurd given Taylor’s slight stature — something the jurors could not only see for themselves, but on which Aiken remarked at one point during his testimony. The Government made the point even more explicitly during its closing argument: Now, why is Rejón Taylor dangerous, ladies and gentlemen? He’s not dangerous because he’s a big, powerful physical presence. He’s not intimidating. He looks like the librarian aides that my mother used to employ at the high school library. He’s not scary-looking. It’s just the opposite. He’s more dán-gerous because he’s not scary-looking, ladies and gentlemen. He’s more dangerous because you don’t see him coming. He’s dangerous because he’s smart. He’s dangerous because he’s controlling. He’s dangerous because he never stops manipulating. He’s dangerous because he never stops conspiring. He’s dangerous because he’s a chameleon. He’s dangerous because he has no remorse. He’s dangerous because he has no concern for others. He’s dangerous because prison walls cannot contain or deter his influence, ladies and gentlemen. He can recruit. He can influence. He can trick anyone. That the Government neither suggested nor implied that Taylor would be directly dangerous to others while in prison — indeed, the Government did the very opposite — distinguishes this case from Supreme Court cases holding that, when a capital defendant’s danger to the community has been raised, but the only sentencing alternative to death available to the jury is life imprisonment without the possibility of parole, the jury must be informed of the parole ineligibility. Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), was a split decision in which the operative opinion was the concurrence of Justice O’Connor. That opinion stressed that “the State [had] sought to show that petitioner [was] a vicious predator who would pose a continuing threat to the community.” Id. at 175-76, 114 S.Ct. 2187 (O’Connor, J., concurring) (emphasis added). Reversal was required because “[a]lthough the only alternative sentence to death under state law was life imprisonment without possibility of parole, petitioner was not allowed to argue to the jury that he would never be released from prison, and the trial judge’s instruction did not communicate this information to the jury.” Id. at 178, 114 S.Ct. 2187. Whereas in Simmons, “[t]he State raised the specter of [the defendant’s] future dangerousness generally” and “advance[ed] generalized arguments regarding” that specter, id. at 165, 171, 114 S.Ct. 2187, here the Government made specific arguments about the way in which Taylor might be dangerous in the future, arguments that went exclusively to the notion that Taylor could be vicariously dangerous if given a life sentence. In short, precluding evidence of ineligibility for parole in Simmons gutted the defendant’s ability to respond to the very arguments made by the prosecutors. Cf. Kelly v. South Carolina, 534 U.S. 246, 248, 252-56, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002). Of course the present case does not involve ineligibility for parole. More generally, the inability to respond to arguments made by prosecutors regarding future danger is not present in anything like the way that it was in Simmons and Kelly. Aiken’s testimony was similarly irrelevant for purposes of mitigation, since mitigating evidence must bear on the defendant’s particular character or circumstances. See, e.g., Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Gregg v. Georgia, 428 U.S. 153, 189 n. 38, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). We have noted that mitigating evidence “includes any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Carter v. Bell, 218 F.3d 581, 594 (6th Cir.2000). This statement in Carter relied on language from the Supreme Court’s decision in Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), which in turn recognized “the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his