United States v. Mikhel (889 F.3d 1003, 2018)

BYBEE, Circuit Judge:

Table of Contents

I. BACKGROUND ... 1016

A. The Hostage-Taking Conspiracy ... 1016

1. Death of Meyer Muscatel ... 1016

2. Death of Rita Pekler ... 1017

3. Death of Alexander Umansky ... 1017

4. Deaths of Nick Kharabadze and George Safiev ... 1018

5. The FBI's investigation ... 1019

B. The Escape Conspiracy and Mikhel's Second Escape Attempt ... 1019

C. Procedural History ... 1020

II. ANALYSIS ... 1021

A. The Guilt Phase ... 1021

1. The Hostage Taking Act ... 1021

2. Defendants' recusal motion ... 1025

3. Batson challenge ... 1028

4. The use of an anonymous jury ... 1031

5. Right to a public trial ... 1032

6. "Reasonable doubt" instruction as to guilt ... 1033

7. Right to two counsel under 18 U.S.C. § 3005... 1033

8. Excluded testimony regarding cooperating witnesses ... 1035

9. Mikhel's competency ... 1036

10. Kadamovas's Confrontation Clause claim ... 1042

11. Kadamovas's severance motion ... 1046

12. Kadamovas's conviction for conspiracy to escape ... 1048

13. Kadamovas's access to a computer ... 1050

B. The Penalty Phase ... 1050

1. "Reasonable doubt" instruction as to penalty ... 1051

2. Victim-impact evidence ... 1052

3. Misconduct in penalty-phase closing arguments ... 1054

4. Instruction and verdict form on future dangerousness ... 1056

5. Griffin error... 1059

6. Examination of Dr. Mark Cunningham ... 1061 7. Mikhel's excluded mitigation evidence ... 1062

8. Kadamovas's future dangerousness ... 1063

9. Nazi and anti-Semitism evidence ... 1064

10. Kadamovas's mitigating factors ... 1065

11. Lithuania's abolition of the death penalty ... 1066

III. CONCLUSION ... 1068

Between late 2001 and early 2002, defendants Iouri Mikhel and Jurijus Kadamovas abducted, held hostage, and killed five people, dumping each victim's body in the New Melones Reservoir outside Yosemite National Park. After a five-month trial, a jury convicted them of several federal crimes, including multiple counts of hostage taking resulting in death under the Hostage Taking Act, 18 U.S.C. § 1203. As summarized below, the evidence that Mikhel and Kadamovas did these things-and did them without concern for their victims' suffering-was detailed, comprehensive, and in a word, overwhelming.

In subsequent penalty-phase proceedings under the Federal Death Penalty Act ("FDPA"), 18 U.S.C. § 3591 et seq. , the jury unanimously recommended that both defendants be sentenced to death. Defendants now challenge their convictions and death sentences on direct appeal to this court. After extensive briefing and argument from the parties, and our own careful review, we affirm.

I. BACKGROUND

A. The Hostage-Taking Conspiracy

Defendants are foreign nationals under the Hostage Taking Act: Mikhel is Russian, and Kadamovas is Lithuanian. Both lived in Los Angeles, California, during the events underlying this case. Defendants were assisted at various times by coconspirators Petro Krylov, Ainar Altmanis, Aleksejus Markovskis, and Natalya Solovyeva. Altmanis, Markovskis, and Solovyeva all pleaded guilty and testified for the government. Krylov was tried and convicted in a separate trial.

1. Death of Meyer Muscatel

In October 2001, Mikhel, Kadamovas, and Altmanis discussed and rehearsed a plan to kidnap local real-estate developer Meyer Muscatel. The plan called for Mikhel to pose as a businessman interested in purchasing real estate. To that end, Mikhel asked Muscatel to view a property with him. Muscatel agreed and drove with Mikhel to the property in question (actually Mikhel's house), where Kadamovas and Altmanis were waiting.

When Muscatel entered the house, Altmanis and Kadamovas grabbed him. Altmanis bound Muscatel's legs with plastic ties, and Kadamovas handcuffed his arms behind his back. Mikhel duct-taped Muscatel's eyes and pistol-whipped him in the head, drawing blood. Mikhel and Kadamovas then took Muscatel's wallet and credit cards and questioned him about his finances. They attempted to withdraw money from his bank account, but the bank froze the account.

When Mikhel and Kadamovas determined they would get no money out of Muscatel, they injected him with Dimedrol (an antihistamine with sedative properties) and held him down to the ground. Mikhel closed a plastic bag over Muscatel's head and pinched his nose shut, suffocating him to death. Mikhel and Kadamovas then loaded Muscatel's body into Kadamovas's van and drove to the New Melones Reservoir. They carried his body to the edge of the Parrotts Ferry Bridge and accidentally dropped it on a curb-leaving blood stains-before tossing it into the reservoir. Kadamovas later told his friend Markovskis that he had once thrown a "fat Jew"

(i.e., Muscatel) off a bridge. The incident, Markovskis said, "was very funny" to Kadamovas.

2. Death of Rita Pekler

Following Muscatel's death, Mikhel and Kadamovas set their sights on kidnapping George Safiev, a wealthy Russian businessman. First, they decided to abduct Safiev's financial advisor, Rita Pekler, to use as bait. In December 2001, Kadamovas contacted Pekler pretending to be interested in her advice on a real estate transaction. Kadamovas had Pekler pick him up and drive him to a property he claimed he was interested in buying (actually his home). Mikhel, Altmanis, and Kadamovas's friend Krylov were already there; Mikhel was carrying a gun with a fake silencer, and Altmanis had a stun gun.

When Pekler arrived, Mikhel restrained her and told her that, if she brought Safiev to them, they would get her drunk with vodka or inject her with Dimedrol and leave her unharmed in a motel. Pekler told them she was pregnant and afraid alcohol or drugs would harm the baby. Undeterred, defendants persisted in trying to use her to lure Safiev. Pekler eventually contacted Safiev, but he told her he was too busy to meet. Shortly thereafter, Safiev left Los Angeles for Russia. Mikhel and Kadamovas decided Pekler had outlived her usefulness; they injected her with Dimedrol, strangled her, and as with Muscatel, threw her body off the Parrotts Ferry Bridge.

3. Death of Alexander Umansky

Later that same month, Krylov suggested abducting his former boss, Alexander Umansky, who owned an automobile shop. Mikhel posed as a customer who needed audio systems installed in two cars and asked Umansky for a ride to one of them. Umansky was excited about the opportunity and agreed to pick up Mikhel. Mikhel directed Umansky to Kadamovas's house, where Kadamovas, Altmanis, and Krylov already lay in wait-Kadamovas with a gun and Altmanis with a stun gun. When Umansky arrived, Kadamovas sat him on a chair, handcuffed his hands behind him, and bound his legs with plastic ties. Mikhel and Kadamovas then took Umansky's keys, telephone, and wallet and questioned him about his finances. Later, Mikhel and Altmanis used Umansky's debit card to withdraw money from an ATM and were captured doing so on a surveillance camera.

Umansky remained trapped in Kadamovas's home for three days, during which Mikhel and Kadamovas forced him to call his brother and plead for money to secure his release. Eventually, Mikhel and Kadamovas decided they no longer needed Umansky alive. They sent Altmanis to buy weight plates from a used sporting goods store. When Altmanis returned, Mikhel shoved plastic bags in Umansky's mouth, duct-taped his mouth shut, and put a bag over his head, while Kadamovas held him down and pinched his nose shut. When these efforts proved ineffective, Mikhel and Altmanis twisted a rope around Umansky's neck and strangled him from behind. Mikhel, Kadamovas, and Altmanis then tied a weight plate around Umansky's body and put it in Kadamovas's van. They drove to Mikhel's house and-with the body still in the van-had dinner with Mikhel's girlfriend. After dinner, the three of them drove to the New Melones Reservoir, where they threw Umansky's body off the Parrotts Ferry Bridge.

Mikhel and Kadamovas had previously sent the Umansky family a ransom note demanding nearly $235,000. The Umansky family contacted the FBI, which advised them to pay just part of the ransom to give the kidnappers a reason to keep Umansky alive. The Umansky family followed the FBI's advice and paid part of the ransom.

Later, after receiving a call threatening harm to other family members, they paid the rest of the ransom money. An IRS investigator traced how the ransom payments were laundered abroad before being deposited in accounts held by Mikhel, Kadamovas, and defendants' business, Designed Water World (a fish aquarium store).

4. Deaths of Nick Kharabadze and George Safiev

In January 2002, Mikhel and Kadamovas learned Safiev was back in Los Angeles and decided to trap him through his friend and business partner, Nick Kharabadze. They planned for Kadamovas's girlfriend, Solovyeva, to call Kharabadze and tell him she had gotten his phone number from a friend and wanted to meet him. Markovskis was part of the plan and later testified that Mikhel and Kadamovas were in charge and calling all the shots.

Solovyeva called Kharabadze and asked him to meet her at what she said was a private club but was in fact Designed Water World's office. When Kharabadze arrived, Altmanis and Markovskis were playing pool, Mikhel and Krylov were drinking, and Kadamovas was standing behind a bar. Kadamovas had a revolver hidden under the bar, and Mikhel and Altmanis had guns concealed under their jackets. Solovyeva asked Kharabadze to order her a drink, while Krylov closed the outside door behind him. Mikhel then handcuffed Kharabadze to a chair, took his keys, wallet, and telephone, and explained they wanted him to help them trap Safiev. At their direction, Kharabadze called Safiev and convinced him to come to Designed Water World.

When Safiev entered Designed Water World, Mikhel, Kadamovas, Altmanis, Krylov, and Markovskis converged on him. Mikhel handcuffed Safiev and took his keys, wallet, and telephone. Mikhel and Kadamovas then transported Kharabadze and Safiev to Kadamovas's house, where they forced Safiev to call his business partner, Konstantinos Tezhik, and beg him to transfer $940,000 to a foreign account. Kharabadze and Safiev remained imprisoned in Kadamovas's house for four days. During this time, Kadamovas recorded Safiev's voice to use to extort more money after he was dead. Kadamovas also told Markovskis that he planned to continue abducting people and throwing their bodies into the reservoir until he had $50 million, even if it meant piling bodies up to the surface of the water.

After Mikhel confirmed receipt of the $940,000, he decided Kharabadze and Safiev were no longer necessary. He and the others got Kharabadze and Safiev drunk with vodka and drove them to the New Melones Reservoir in two cars. On the way, a policeman pulled them over for driving too closely together. Mikhel exited his car and had a brief conversation with the policeman, who sent him on his way. Solovyeva later testified that Kadamovas said he would have killed the policeman if he had seen the hostages in the car.

At the New Melones Reservoir, Mikhel killed Kharabadze by placing a plastic bag over his head and tightening a plastic tie around his throat. Altmanis tied a weight around Kharabadze's body and assisted in throwing it off the Stevenot Bridge. Safiev had already been killed and thrown into the reservoir in a similar fashion. Mikhel told Altmanis that Safiev, like Pekler, had been difficult to kill because he was "strong as a snake."

Mikhel used Kharabadze's and Safiev's ATM cards to withdraw money and was again captured on surveillance cameras. Kadamovas then gave the ATM cards to his associate, Vladimir Paniouchkine, who traveled to Germany to withdraw more money. Mikhel used one of Safiev's credit cards to order about $9,000 in electronic equipment. In addition, Mikhel called Tezhik in London and faxed him a ransom note-which Safiev had signed before he died-demanding another $4 million in ransom. Tezhik tape-recorded his calls with Mikhel.

All in all, Mikhel and Kadamovas received over $1 million in ransom money from the hostage-taking conspiracy, which they spent on high-end cars, renovations for their homes, lavish presents for their girlfriends, and expensive vacations, among other things.

5. The FBI's investigation

A father and son returning from a fishing trip discovered Muscatel's body near the Parrotts Ferry Bridge. Later, Altmanis learned the FBI was investigating him, decided to confess, and helped the FBI find the last four victims' bodies. The FBI wire-tapped Mikhel's and Kadamovas's phones and recorded them discussing ransom money. The FBI also secured data from their cellphones, which showed them driving north on Highway 99 toward the New Melones Reservoir on the days Muscatel, Pekler, Umansky, Kharabadze, and Safiev died.

The FBI searched Mikhel's house and found extensive physical evidence linking him and Kadamovas to the victims, including the original $4 million ransom note for Safiev, a record of Safiev's and Kharabadze's personal and financial information, four sets of handcuffs, and plastic ties like those found on the victims. Mikhel's and Kadamovas's fingerprints were on many of these items, and Safiev's and Kharabadze's DNA was on the handcuffs. The FBI also found fourteen handguns, handgun parts, ammunition, a silencer, an electric shock baton, a stun gun, and several stolen or fraudulent passports.

The FBI searched Kadamovas's two residences and found additional evidence connected to the victims. At Kadamovas's house in Sherman Oaks, the FBI found several weight plates (but no weight bars or other exercise equipment) and an envelope with a phone number written on it-the same number that defendants used to call the Umansky family for ransom. At Kadamovas's house in Encino, the FBI found a distinctive dagger linked to defendants' money-laundering scheme, a handgun, ammunition, and shoes with blood stains. The shoes matched the shoeprints left in Muscatel's blood on the Parrotts Ferry Bridge. The carpet in Kadamovas's house matched carpet fibers retrieved from Kharabadze's clothing.

B. The Escape Conspiracy and Mikhel's Second Escape Attempt

Following their arrests, Mikhel, Kadamovas, and Krylov were detained at the Metropolitan Detention Center-Los Angeles ("MDC"). Mikhel devised a plan by which he, Kadamovas, Krylov, and others would smuggle tools into their cells and bore holes through their cell walls to reach an adjacent stairwell. Once in the stairwell, they would use a hydraulic pump to push open the window's bars, climb through the window, and rappel down the side of the building. A motorcycle gang would be waiting for them outside and would spin off in different directions before reuniting at a safe house. In accordance with the plan, Mikhel successfully smuggled a veritable hardware store into his cell, including hacksaw blades, wrenches, screwdrivers, fishing line, paint, work gloves, bolt cutters, and a camcorder. Kadamovas was originally housed elsewhere in the facility but managed to change cells to be next to the stairwell intended for the escape.

Mikhel invited fellow inmate Billy Parker to join the escape conspiracy, offering him the necessary tools (for a price) and warning him they would have to kill any guards they met on their way out. Parker, however, informed MDC officials. In Mikhel's cell, officials found a large hole carved in the wall and his cache of tools. In Krylov's cell, they found a smaller hole, hacksaw blades, and a screwdriver. They did not find any evidence of tunneling or contraband in Kadamovas's cell. Nonetheless, there was extensive evidence linking Kadamovas to the escape conspiracy, as described in detail below.

After the first escape attempt, Mikhel was moved to a high security section of San Bernardino County's Central Detention Center ("SB-CDC"). There, he was placed under Special Administrative Measures and isolated from other inmates. Despite these measures, Mikhel concocted a detailed escape plan, which he outlined in a letter promising $1 million to an alleged member of the Mexican Mafia in exchange for help. Officials intercepted the letter, and a deputy sheriff assigned to SB-CDC later testified that Mikhel's escape plan was very feasible.

C. Procedural History

A grand jury indicted Mikhel and Kadamovas on one count of Conspiracy to Take Hostages Resulting in Death ( 18 U.S.C. § 1203 ), three counts of Hostage-Taking Resulting in Death ( 18 U.S.C. § 1203 ), Conspiracy to Launder Monetary Instruments ( 18 U.S.C. § 1956(h) ), Conspiracy to Escape from Custody ( 18 U.S.C. § 371 ), and Criminal Forfeiture ( 18 U.S.C. § 981(a)(1)(C), 21 U.S.C. § 853, and 28 U.S.C. § 2461(c) ). The government filed a notice of intent to seek the death penalty against both defendants.

The guilt phase of trial began in July 2006 and spanned five months. The government's case in chief was detailed and thorough, including scores of witnesses who testified over the course of more than thirty trial days. Defendants initially rested their case after just three trial days, but the district court permitted them to reopen their case when Mikhel unexpectedly chose to testify. Mikhel testified on direct for three days, at the end of which he refused to be cross-examined. On Kadamovas's motion, the district court struck Mikhel's testimony and instructed the jury to disregard it. On January 16, 2007, the jury began its deliberations. The very next day, it returned separate verdicts in each defendant's case, finding both defendants guilty on all counts.

The penalty phase began on January 24, 2007. The FDPA requires the jury to make several findings before recommending a sentence of death. Among other things, the jury must find that at least one statutory aggravating factor exists and that all aggravating factors proven by the government "sufficiently outweigh" any mitigating factors proven by defendants. 18 U.S.C. § 3593(e). The government argued four statutory aggravating factors against both defendants: (1) death during commission of another crime, (2) procurement of offense by payment, (3) substantial planning and premeditation, and (4) multiple killings. See 18 U.S.C. § 3592(c). The government also argued five non-statutory aggravating factors against both defendants: (5) future dangerousness, (6) contemporaneous convictions for multiple offenses, (7) witness elimination, (8) emotional suffering of the victims, and (9) victim impact. The government's penalty-phase case incorporated all of its guilt-phase evidence. In addition, the government presented several victim-impact witnesses and further evidence of Mikhel's escape attempts.

Mikhel proffered eighteen mitigating factors and presented penalty-phase evidence regarding his upbringing, mental health, and life in Russia, as well as several videotaped interviews of his friends and family. Kadamovas proffered nine mitigating factors and presented penalty-phase evidence regarding statistical violence rates in prisons and the former Soviet Union. The district court charged the jury on February 13, 2007. Later the same day, after a brief three-hour deliberation, the jury returned separate verdicts in each defendant's case. The jury unanimously found every aggravating factor proposed by the government as to both defendants. No juror found any mitigating factor as to either defendant. And the jury unanimously recommended that both defendants be sentenced to death. Accordingly, the district court sentenced both defendants to death on each of the four capital offenses. The court also sentenced them to twenty years' imprisonment on the remaining counts and ordered over $1 million in forfeiture.

II. ANALYSIS

Defendants claim errors in both the guilt and penalty phases of trial. We have had the benefit of extensive briefing and oral argument in this case: the briefs totaled more than 1,700 pages, and the court heard more than three hours of oral argument. The court granted generous extensions of time and space to the parties for briefing; indeed, this direct appeal was heard over ten years after the entry of judgment and fifteen years after the crimes. We will address each claimed error in turn.

A. The Guilt Phase

1. The Hostage Taking Act

Defendants were convicted and sentenced to death on one count of conspiring to take hostages resulting in death and three counts of hostage taking resulting in death under the Hostage Taking Act, 18 U.S.C. § 1203. They seek to overturn their convictions on grounds that the Hostage Taking Act requires a nexus to "international terrorism" and that no such nexus exists here. In the event the Act does not require such a nexus, they claim it exceeds Congress's constitutionally enumerated powers and also violates the Tenth Amendment. We review these questions of statutory construction and constitutional law de novo. See United States v. Chi Mak , 683 F.3d 1126, 1133 (9th Cir. 2012).

The United States is a party to the International Convention Against the Taking of Hostages, Dec. 17, 1979, T.I.A.S. No. 11081, 1316 U.N.T.S. 205 ("the Treaty"), which binds its signatories to take "effective measures for the prevention, prosecution and punishment of all acts of taking of hostages as manifestations of international terrorism." Treaty, pmbl. The Treaty defines hostage taking as follows:

Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person ... in order to compel a third party ... to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages ... within the meaning of this Convention.

Id. art. 1(1). The Treaty, with limited exceptions, does not apply where a hostage taking is committed within a single nation, both the offender and victim are nationals of that nation, and the offender is found within that nation. Id. art. 13.

Congress implemented the Treaty through the Hostage Taking Act, which tracks the Treaty's language:

(a) ... [W]hoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or abstain from doing any act as an explicit or implicit condition for the release of the person detained, or attempts or conspires to do so, shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

....

[ (b) ](2) It is not an offense under this section if the conduct required for the offense occurred inside the United States, each alleged offender and each person seized or detained are nationals of the United States, and each alleged offender is found in the United States, unless the governmental organization sought to be compelled is the Government of the United States.

18 U.S.C. § 1203. There are three elements to this crime: "(1) a seizure or detention; (2) a threat to kill, injure, or continue to detain; (3) with the purpose of compelling a third person or governmental entity to act in some way or refrain from acting." United States v. Sierra-Velasquez , 310 F.3d 1217, 1220 (9th Cir. 2002). In addition, § 1203(b) requires some international element, i.e., that the offense occurred abroad, that the defendant is found abroad, that a defendant or victim is a foreign national, or that the defendant sought to compel something from the federal government.

Defendants' interpretation of the Hostage Taking Act as requiring proof of a nexus to international terrorism is both infirm as a matter of statutory interpretation and foreclosed by our prior decision in United States v. Lopez-Flores , 63 F.3d 1468 (9th Cir. 1995). The definition of a hostage-taking offense in the Treaty and the Act makes no mention of international terrorism. Defendants base their argument instead on the Treaty's preamble, which refers to "all acts of taking of hostages as manifestations of international terrorism." Treaty, pmbl. (emphasis added). By its own terms, the preamble's reference to "international terrorism" is illustrative only; it limits neither the Treaty nor Congress's implementing legislation.

Contrary to defendants' argument, the statute's legislative history affirms that hostage taking is not limited to acts with a nexus to international terrorism. See Lopez-Flores , 63 F.3d at 1476 (quoting Legislative Initiatives Hearings, 98th Cong., 2d Sess. 48-49 (1984) (statement of Victoria Toensing, Deputy Assistant Attorney General) ("[T]he bill is not limited to hostage-taking by terrorists, in keeping with the purpose of the international Convention....") ). Thus, in Lopez-Flores , we held that the Act applied to alien smugglers who held aliens for ransom. Id. at 1475-76. And in Sierra-Velasquez , we rejected a narrow reading of Lopez-Flores and once again upheld the conviction of alien smugglers. 310 F.3d at 1220 (" Lopez-Flores ... does not limit hostage taking to the facts of that case.").

Nevertheless, defendants argue that the Supreme Court's more recent decision in Bond v. United States requires a narrower reading of the Hostage Taking Act. --- U.S. ----, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014) (" Bond II "). In Bond II , the Court held that Bond-a microbiologist who had poisoned her husband's lover by spraying low-dosage toxic chemicals on her doorknob, car, and mailbox-could not be convicted under the federal Chemical Weapons Act. Id. at 2084-85. The statute, which implemented the Chemical Weapons Convention, criminalized the use of "chemical weapon[s]." Id. at 2085. The Court considered the ordinary meaning of "chemical weapons" and acknowledged that "the chemicals in this case are not of the sort that an ordinary person would associate with instruments of chemical warfare [i.e., the subject of the underlying treaty]." Id. at 2090. For this reason, and given the lack of any clear indication that Congress intended the statute to reach purely local crimes, the Court refused to "adopt a reading of [the Act] that would sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room." Id. at 2091.

By contrast, Mikhel and Kadamovas's conduct in abducting and holding their victims for ransom fits squarely within the Treaty and Hostage Taking Act and comports with any ordinary understanding of a "hostage taking." Moreover, the Hostage Taking Act does not cover purely local conduct but rather expressly requires some international component. See 18 U.S.C. § 1203(b). Mikhel and Kadamovas's offenses not only met the Act's requirements but had other international contacts as well, further demonstrating an appropriate federal interest in this case. For instance, Mikhel and Kadamovas sent a ransom demand abroad and laundered ransom money through foreign countries. We therefore reaffirm, in accordance with our prior decisions in Lopez-Flores and Sierra-Velasquez , that the Hostage Taking Act does not require proof of a nexus to international terrorism.

This brings us to defendants' constitutional argument. In Lopez-Flores , we rejected challenges to the Hostage Taking Act as unconstitutionally vague or as violating the Equal Protection Clause, but we did not address the argument defendants assert here-namely, that the Hostage Taking Act exceeded Congress's constitutionally enumerated powers and violated the Tenth Amendment. Lopez -Flores , 63 F.3d at 1473-75. In this regard, we are persuaded by the Second Circuit's reasoning in United States v. Lue , which rejected a similar argument and held that the Act was a valid exercise of Congress's power under the Necessary and Proper Clause together with the Treaty Power. 134 F.3d 79, 82-85 (2d Cir. 1998).

The Constitution grants the President the "Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." U.S. CONST. art. II, § 2, cl. 2. It also grants Congress the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." U.S. CONST. art. I, § 8, cl. 18. In Missouri v. Holland , the Supreme Court held that, if a treaty is a valid exercise of the President's Treaty Power, then Congress's statute implementing that treaty is valid "as a necessary and proper means to execute the powers of the Government." 252 U.S. 416, 432, 40 S.Ct. 382, 64 L.Ed. 641 (1920). We and other courts have commonly understood Holland to mean that the Necessary and Proper Clause grants Congress broad authority to enforce our country's treaty obligations by statute. See, e.g. , United States v. Shi , 525 F.3d 709, 721 (9th Cir. 2008) ; United States v. Rodriquez-Camacho , 468 F.2d 1220, 1222 (9th Cir. 1972). Although this broad reading of the Necessary and Proper Clause has been criticized and debated, see, e.g. , Bond II , 134 S.Ct. at 2098-102 (Scalia, J., concurring), the Supreme Court has never undertaken to clarify or correct our understanding. We are thus bound by our prior cases.

As the Second Circuit held in Lue , there is no question the Treaty at issue here is well within the President's Treaty Power. 134 F.3d at 83 ("Whatever the potential outer limit on the treaty power of the Executive, the Hostage Taking Convention does not transgress it."). Furthermore, there can be little question that the Hostage Taking Act fulfills our country's obligation under the Treaty. The Hostage Taking Act tracks the Treaty's language in all material respects, compare 18 U.S.C. § 1203(a), with Treaty, art. I, and clearly bears a rational relationship to the Treaty, see United States v. Comstock , 560 U.S. 126, 134, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010) ("[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power."); United States v. Santos-Riviera , 183 F.3d 367, 373 (5th Cir. 1999) ("Congress rationally concluded that a hostage taking within our jurisdiction involving a noncitizen is sufficiently likely to involve matters implicating foreign policy or immigration concerns as to warrant a federal criminal proscription."); Lue , 134 F.3d at 84 ("The [Hostage Taking] Act here plainly bears a rational relationship to the Convention."). Accordingly, the Hostage Taking Act was a valid exercise of Congress's power under the Necessary and Proper Clause together with the Treaty Power. See Holland , 252 U.S. at 432, 40 S.Ct. 382.

Defendants' independent Tenth Amendment challenge is unavailing. The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. CONST. amend. X. The Tenth Amendment is not a substantive, external constraint on Congress's power. Rather, it reflects a "truism," "declaratory of the relationship between the national and state governments." United States v. Darby , 312 U.S. 100, 124, 61 S.Ct. 451, 85 L.Ed. 609 (1941). The Tenth Amendment summarizes and, thus, reinforces the relationship between the United States-whose powers are limited and enumerated-and the states whose powers are general, except as limited by the U.S. Constitution and their own constitutions. Defendants' argument that the states have exclusive authority to punish hostage taking depends on their ability to show one of two things: either that the Constitution has not conferred any authority to Congress to enact the Hostage Taking Act or, more improbably, that the Constitution actually confers exclusive authority over hostage taking to the states. The former they cannot show, because "if Congress acts under one of its enumerated powers"-as we have concluded it did here-then "there can be no violation of the Tenth Amendment."

United States v. Jones , 231 F.3d 508, 515 (9th Cir. 2000). As to the latter, defendants have no evidence. See Garcia v. San Antonio Metro. Transit Auth. , 469 U.S. 528, 550, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) ("With rare exceptions, ... the Constitution does not carve out express elements of state sovereignty that Congress may not employ its delegated powers to displace."). Although California undoubtedly has its own authority to punish defendants, that only confirms the United States and California's concurrent jurisdiction-an example of the dual sovereignty doctrine. It does not prove the exclusive jurisdiction of California. In short, the Hostage Taking Act is consistent with Congress's "federalism-based respect for state and local authority in this area of law enforcement." Lopez-Flores , 63 F.3d at 1473.

Finally, defendants argue that, even if the Hostage Taking Act does not itself exceed Congress's power, the subsequent amendment to the Act authorizing the death penalty does exceed Congress's power. The argument is without merit. If Congress has the power to criminalize conduct, it also has the power to prescribe a constitutionally permissible punishment for that conduct. See Mistretta v. United States , 488 U.S. 361, 364, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) ("Congress, of course, has the power to fix the sentence for a federal crime."). Indeed, the Treaty that the Hostage Taking Act implements requires its signatories to make hostage taking "punishable by appropriate penalties which take into account the grave nature of those offences." Treaty, art. II. The Treaty is not self-executing, see Medellin v. Texas , 552 U.S. 491, 504-05 & n.2, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) ; it neither prescribes nor forbids any particular punishment but explicitly leaves it to each signatory to do so. Congress's amendment authorizing the death penalty for hostage takings resulting in death was equally within its constitutional power under the Necessary and Proper Clause as the original Act.

2. Defendants' recusal motion

Defendants claim 28 U.S.C. § 455(a) required Judge Tevrizian to recuse himself after he applied to a local screening committee for the position of United States Attorney for the Central District of California-the same office prosecuting this case. "We review the denial of a recusal motion for an abuse of discretion." United States v. Johnson , 610 F.3d 1138, 1147 (9th Cir. 2010).

On December 28, 2006, Judge Tevrizian held a status conference and informed the parties that a search committee had asked him to submit his name for the position of United States Attorney for the Central District of California and that he had done so:

There's been a lot of rumors floating around here. You know, I had announced that I'm going to retire just as soon as this case is over and join a judicial arbitration mediation service. A couple of weeks ago I received a telephone call from a search committee that's looking to replace the United States Attorney and they asked me to submit my name for that position. The search committee is not associated with the Justice Department nor is it associated with the administration. They make recommendations and they asked me to submit my name. Whether anything comes of it I don't know, but I thought I should disclose this to you. I'm not doing it for any financial gain, because I made it very clear that if I do take the position that I would do it for a dollar a year, because of the fact that I'm on a federal pension, judicial pension, and I don't believe in double dipping. So I do make this disclosure to you. Again, I don't know if anything is going to come of it. I haven't been contacted by the administration. I haven't been contacted by anybody in Washington.

Neither side made any objection.

Trial proceeded, and the jury returned guilty verdicts a few weeks later. It was not until January 29, 2007, after the government had rested its case in chief in the penalty phase, that defendants moved for recusal. Judge Tevrizian denied defendants' motion the next day, stating that he had withdrawn his name from consideration and that his application had never progressed past a preliminary stage:

I advised and disclosed to all parties on the record that I was contacted by a representative of the local screening committee to apply for the position of United States Attorney for the Central District of California. None of the parties or their counsel ever objected.

I submitted a form application and was interviewed by the screening committee only. I have never been interviewed by anyone of the Department of Justice o[r] White House counsel's office. In fact, I never directly submitted my application to the Department of Justice or White House counsel's office. It was submitted only to the local screening committee, who may have passed it on.

Again, none of the defense counsel or the defendants objected when I made the disclosure on the record weeks ago that I was planning to apply for the position.

....

Yesterday I withdrew my name for consideration for the position of United States Attorney by notifying the local committee. The only personal contact I had with either the Department of Justice or the White House counsel's office was over the telephone, yesterday, to inform them that I had withdrawn my name from consideration.

I was also informed that my application was never considered on the merits by the Department of Justice or White House counsel's office.

Defendants filed a petition for mandamus in our court. We denied the petition, noting that they had "arguably filed their motion to recuse the district judge too late."

"It is well established in this circuit that a recusal motion must be made in a timely fashion." E. & J. Gallo Winery v. Gallo Cattle Co. , 967 F.2d 1280, 1295 (9th Cir. 1992). "While there is no per se rule that recusal motions must be made at a fixed point in order to be timely, such motions should be filed with reasonable promptness after the ground for such a motion is ascertained." Id. (citation omitted) (quotation marks omitted). Where "unexplained delay" in filing a recusal motion "suggests that the recusal statute is being misused for strategic purposes," the motion will be denied as untimely. Id. at 1296 ; see also United States v. Rogers , 119 F.3d 1377, 1380 (9th Cir. 1997) ; Davies v. Comm'r , 68 F.3d 1129, 1131 (9th Cir. 1995).

Defendants discovered the alleged grounds for recusal on December 28, 2006, but nevertheless waited until January 30, 2007, to file their motion. Although a delay of a little over a month would not always, or even ordinarily, doom a motion for recusal, defendants' delay here renders their motion untimely. Defendants were clearly notified that Judge Tevrizian had put himself in the running to be United States Attorney, yet they withheld their motion while trial was ongoing and waited to file until after the jury's verdicts against them, and after the government rested its penalty-phase case. See Rogers , 119 F.3d at 1380. We see "a heightened risk" that defendants used a recusal motion "for strategic purposes." Preston v. United States , 923 F.2d 731, 733 (9th Cir. 1991). Defendants' recusal motion asked Judge Tevrizian to "declare a mistrial of the penalty phase, and then recuse himself from presiding further," but did not seek a mistrial as to the guilt phase. Defendants likely recognized that the evidence of guilt was overwhelming and, rather than delay the inevitable, may have tried to throw a wrench into the penalty phase in the hope that the government would prefer accepting life sentences to conducting a fresh penalty phase.

Defendants argue that whether they timely moved for recusal is neither here nor there because § 455(a) and Canon 3C(1) of the Code of Judicial Conduct place the duty to recuse on the judge. We have rejected this same argument before. E. & J. Gallo Winery , 967 F.2d at 1295. "In fact, 28 U.S.C. § 144 expressly requires that a motion to disqualify must be 'timely,' and we have judicially required as much under 28 U.S.C. § 455." Rogers , 119 F.3d at 1380. Enforcing the timeliness of a recusal motion is necessary to prevent litigants from using § 455(a) for strategic purposes. Defendants cannot avoid their timeliness problem by putting the onus of recusal on the district court. They filed their recusal motion too late.

In addition to its untimeliness, defendants' recusal motion fails on its merits. Under § 455(a), "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). "The goal of section 455(a) is to avoid even the appearance of partiality." United States v. Holland , 519 F.3d 909, 913 (9th Cir. 2008) (quoting Liljeberg v. Health Servs. Acquisition Corp. , 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) ). Thus, we "ask whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." Id. (quotation marks omitted). "The reasonable person is not someone who is hypersensitive or unduly suspicious, but rather is a well-informed, thoughtful observer." Id. (quotation marks omitted). "The standard must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice." Id. (quotation marks omitted).

Here, Judge Tevrizian promptly and clearly disclosed the alleged grounds for recusal to the parties; his only contact was with a local screening committee; he stated he would not seek remuneration for the position, and there was no opportunity for him to negotiate salary, bonuses, or the like; his application was never considered on its merits by the Department of Justice or White House Counsel's office; and he immediately withdrew his application when defendants filed their motion. The fact that Judge Tevrizian immediately withdrew his application is particularly significant. If defendants had made a timely motion and Judge Tevrizian had not immediately withdrawn his application, this issue might have presented a closer question. As it is, we cannot say that a reasonable person with knowledge of all the facts would have questioned Judge Tevrizian's impartiality.

3. Batson challenge

Defendants made a Batson challenge to the government's peremptory strike of Juror 285, a black woman. "Purposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." Batson v. Kentucky , 476 U.S. 79, 86, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Ruling on a Batson challenge requires a three-step framework:

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

United States v. Alvarez-Ulloa , 784 F.3d 558, 565 (9th Cir. 2015) (quoting Miller-El v. Cockrell , 537 U.S. 322, 328-29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ). Ordinarily, we review the district court's ruling on a Batson challenge for clear error. See Snyder v. Louisiana , 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). We have applied de novo review, however, where the court improperly applied the three-step framework. See, e.g. , Alvarez-Ulloa , 784 F.3d at 565. We need not decide which standard of review applies here because defendants' challenge fails even under de novo review. We acknowledge, however, that under either standard we are at some disadvantage because we are assessing a cold record and cannot, as did the trial judge and counsel, take measure of Juror 285's visage, inflection, or body language. See Snyder , 552 U.S. at 483, 128 S.Ct. 1203 ("We recognize that a retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial.").

The jury pool consisted of 270 potential jurors, and each side had twenty-eight peremptory challenges. The government used its thirteenth peremptory challenge against Juror 285. Defendants made a Batson challenge, and the government responded that its reasons for striking Juror 285 were that (1) her father was in prison on drug charges and (2) she was lukewarm on the death penalty. Defense counsel replied that "[e]very juror that the government has kicked has been a juror of color, whether it's been black, Hispanic, or Asian." When the government correctly pointed out that the last juror it had struck was white, the district court stated there was "no Batson challenge" and gave no further consideration to the issue. Jury selection continued-with the government leaving ten peremptory challenges unexercised-and defendants never renewed their Batson challenge. The final jury consisted of five white jurors, three Hispanic jurors, two black jurors, one Asian juror, and one multi-race juror.

The parties agree that the government's proffered reasons for its peremptory challenge to Juror 285 mooted step one and satisfied step two of the Batson analysis. Only step three is at issue. "[A]t the third step, the trial court must decide not only whether the reasons stated are race-neutral, but whether they are relevant to the case, and whether those stated reasons were the prosecutor's genuine reasons for exercising a peremptory strike, rather than pretexts invented to hide purposeful discrimination." Green v. LaMarque , 532 F.3d 1028, 1030 (9th Cir. 2008). "The defendant need not prove that all of the prosecutor's race-neutral reasons were pretextual, or even that the racial motivation was 'determinative.' " Currie v. McDowell , 825 F.3d 603, 605 (9th Cir. 2016). "Instead, to prove a Batson violation, the defendant must demonstrate that 'race was a substantial motivating factor' in the prosecutor's use of the peremptory strike." Id. at 606. "It is true that peremptories are often the subjects of instinct, and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives." Miller-El v. Dretke , 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (citation omitted).

We consider first the government's proffered reasons for striking Juror 285 vis-à-vis its other peremptory strikes. "Comparative juror analysis is a useful tool at Batson step three and failure to strike similarly situated venire members can ground a conclusion that purposeful discrimination occurred." Alvarez-Ulloa , 784 F.3d at 567 (citation omitted). Defendants highlight Juror 285's juror questionnaire, on which she wrote "I am neither for or against the death penalty." She explained: "[T]he death penalty to me is no joke. [L]ife to me is a gift so when it come[s] to taking someone's life a lot of things need to be tak[en] into consideration." In response to a question asking whether she felt the death penalty was used too often, too seldomly, or randomly, she wrote: "[I]f people had any conscious [sic] as to what would happen if they did the wrong, maybe even getting the death penalty, they may think twice about what they are about to do." When asked whether her views would cause her "substantial difficulty in voting for death as the appropriate penalty," she checked "No."

Although these written responses suggested Juror 285 would have been willing to vote for the death penalty under appropriate circumstances, her oral responses during voir dire demonstrated far greater hesitance:

[Government]: .... Ma'am, in the penalty phase, depending on the evidence as you heard it, could you consider either punishment, either life imprisonment or the death penalty?

[Juror 285]: I can't consider it right now because I don't know what it is.

[Government]: I'm not asking-

[Juror 285]: And I can't base my decision on something that I don't know, so I can't answer that question for you.

[Government]: Absolutely. Could you just consider the evidence presented by both sides?

[Juror 285]: Yes, ma'am.

Juror 285's hesitant responses during voir dire-particularly her interruption of the prosecutor and unwillingness to give an unequivocal answer to whether she could consider imposing the death penalty-would understandably give pause to any prosecutor trying a death penalty case. This concern was reflected in the prosecutor's extemporaneous response to the challenge: "This has nothing to do with the color of anybody's skin. It has totally to do with their attitudes concerning the death penalty and their ability to be a fair juror and render the verdict that we think is appropriate in this case."

Defendants contend Jurors 67 and 84 (whom the government did not strike) were as hesitant or more hesitant to impose the death penalty as Juror 285. Juror 67, a Hispanic male, stated he was "fairly neutral" on the death penalty and wrote in his questionnaire that the death penalty is used "unfairly" because "a great deal depends on your ability to hire a competent lawyer." But when the government asked him during voir dire whether he could consider imposing the death penalty, Juror 67 gave an unequivocal response: "Certainly." This prevents him from being an apposite comparison to Juror 285.

Juror 84, a white male, wrote on his juror questionnaire that he was neither 100 percent for nor against the death penalty and that, "depending on the crime," "the death penalty should be a possible penalty." He indicated the death penalty is used "fairly" and is generally reserved "for the most terrible crimes." Although defendants correctly quote his statement that he "really hate[d] to see anybody put to death," they ignore the remainder of his response: "[B]ut I can see the reason for it in today's society." When asked if he could consider imposing the death penalty, Juror 84 confirmed, "I believe so, yes." Like Jurors 67 and 84, the other jurors highlighted in defendants' briefs all affirmed they could consider imposing the death penalty-which is precisely what Juror 285 did not do. In short, comparative analysis does not show that the government's concern over Juror 285's willingness to impose the death penalty was pretextual.

There is less merit to the government's other stated reason for striking Juror 285: that her father was in prison on drug charges. Juror 285 stated her "dad ha[d] gone to jail on drug related charges" but that this would not influence her decisions. Some non-stricken jurors also had family in prison or had been charged with crimes themselves. Juror 67 had pleaded guilty to a DUI, and Juror 8, an Asian male, had pleaded guilty to misdemeanor assault. It is unclear whether either juror was incarcerated, but the government apparently did not follow up with them on the issue. That said, Juror 67's father and cousin were both police officers, and Juror 8 wrote in his questionnaire that he "believe[d] in the death penalty" and that it was "used fairly."

Somewhat more troubling, Juror 39, a white male, had a son who was imprisoned after pleading guilty to second-degree murder. Juror 39 attested this would not influence his decisions, but when asked whether the incident "left a bad taste in [his] mouth regarding the criminal justice system[,]" he responded "[t]hat's a hard one for me to answer...." He then provided a lengthy explanation, exhibiting frustration with his son for accepting a plea bargain without consulting him and with the district attorney for charging his son with first-degree murder rather than manslaughter. On the other hand, Juror 39 represented that he had served on several juries, all of which went to verdict. This provided a powerful reason for the government not to strike Juror 39: a prosecutor might assume that, if a prospective juror has served on several juries that all reached a verdict, the juror is unlikely to be a defense-friendly holdout during deliberations.

On balance, even if the government's explanation about Juror 285's father's criminal history seems weak, the comparative analysis here provides little evidence of discriminatory intent, particularly given the government's genuine and compelling reason for striking Juror 285 for being lukewarm on the death penalty, and possible reasons for not striking Jurors 8, 39, and 67 despite their criminal-history responses. Furthermore, although the government applied six of its eighteen exercised peremptory challenges to black jurors, there were two black jurors on the final jury and two black jurors as alternates. The government accepted this outcome, leaving ten peremptory challenges unexercised. Moreover, the final jury's composition fairly resembled the entire jury pool, with white jurors actually making up a smaller percentage of the jury than they did of the pool. After careful review, we cannot say defendants have met their burden of demonstrating race was a "substantial motivating factor" in the government's peremptory strike of Juror 285. Currie , 825 F.3d at 606.

4. The use of an anonymous jury

Empaneling an anonymous jury is permissible only if "(1) there is a strong reason for concluding that it is necessary to enable the jury to perform its factfinding function, or to ensure juror protection; and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused." United States v. Shryock , 342 F.3d 948, 971 (9th Cir. 2003). Defendants did not object to empaneling an anonymous jury, and they do not challenge the district court's determination that an anonymous jury was necessary to ensure juror protection. Rather, they claim specific precautions-a cautionary instruction on the reasons for juror anonymity and the disclosure of potential jurors' names and addresses to defense counsel-were required to minimize the risk of prejudice to their Fifth Amendment right to a presumption of innocence and Sixth Amendment right to an impartial jury. As defendants raised neither issue below, we review for plain error. See United States v. Mitchell , 502 F.3d 931, 967 (9th Cir. 2007).

First, the district court took reasonable precautions to safeguard defendants' Fifth Amendment right to a presumption of innocence. The district court did not instruct the jury on the reasons for their anonymity but simply informed them they would be referred to by number rather than name. The questionnaire potential jurors completed stated their information would "be kept confidential" and that "[n]either your identities nor your answers will be released to the general public or the media." In short, the court treated the jurors' anonymity as routine and suggested through the questionnaires that it was concerned about their privacy and unwanted media attention. The court also repeatedly instructed the jury that defendants were presumed innocent, further mitigating any potential prejudice in this regard.

Although we upheld empaneling an anonymous jury in Shryock , where the jury was given a pretextual reason for anonymity, we did not say that giving a pretextual reason was a necessary precaution. Simply treating anonymity as a routine procedure and offering neutral justifications focused on juror confidentiality also sufficiently guard against prejudice. United States v. Fernandez , 388 F.3d 1199, 1245 (9th Cir. 2004) (collecting cases). Indeed, "the generally accepted practice for minimizing prejudice ... is to downplay (not accentuate) the significance of the juror anonymity procedure." United States v. Ochoa-Vasquez , 428 F.3d 1015, 1037 (11th Cir. 2005). Had the district court done what defendants now contend was required and given a cautionary instruction on anonymity, the instruction might have drawn more attention to anonymity and led jurors to speculate on the subject. There was no error, let alone plain error, in failing to give a sua sponte cautionary instruction on the reasons for anonymity.

Second, the district court took reasonable precautions to safeguard defendants' Sixth Amendment right to an impartial jury. As we recognized in Shryock , "the use of an anonymous jury may interfere with defendants' ability to conduct voir dire and to exercise meaningful peremptory challenges, thereby implicating defendants' Sixth Amendment right to an impartial jury." 342 F.3d at 971. Moreover, 18 U.S.C. § 3432 requires a "list of the veniremen ... stating the place of abode of each venireman" to be provided to a capital defendant, unless "the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person." Defendants do not dispute the district court's finding that disclosing jurors' identifying information would have jeopardized their lives or safety. Instead, defendants argue it was plain error for the court not to sua sponte disclose potential jurors' identities to defense counsel under a protective order.

The district court sufficiently safeguarded defense counsel's ability to conduct voir dire by providing defendants with an eleven-page questionnaire for each potential juror detailing age, marital status, city of residence, employment history, and education, among other things. None of our cases require, or even suggest, that providing potential jurors' names and addresses to defense counsel is necessary in circumstances such as these. Nor does § 3432 require disclosing jurors' identifying information to counsel when the "life or safety" exception applies, as it undisputedly did here. The district court committed no error, and certainly no plain error, in empaneling the anonymous jury as it did. See United States v. Gonzalez-Aparicio , 663 F.3d 419, 428 (9th Cir. 2011) (an error "cannot be plain where there is no controlling authority on point").

5. Right to a public trial

Defendants claim the district court's exclusion of Armen Harutiunian from trial violated their Sixth Amendment right to a public trial. Harutiunian attended Mikhel's last day of testimony on January 5, 2007. He had been released from federal prison earlier that same day. He had a visible Armenian gang tattoo on his neck, told courtroom staff he was a "friend" or "fan" of Mikhel, and was observed behaving in a manner that was "intimidating in nature." The next week, the district court informed the parties that Harutiunian would be barred from reentering the courtroom going forward. Neither defendant objected, and neither defendant gave any indication of an acquaintance with Harutiunian. There is also no evidence Harutiunian ever attempted to attend the trial again. Because defendants did not object to the exclusion below, we review for plain error. See Mitchell , 502 F.3d at 967.

"The right to a public trial entitles a criminal defendant at the very least ... to have his friends, relatives and counsel present, no matter with what offense he may be charged." United States v. Rivera , 682 F.3d 1223, 1229 (9th Cir. 2012) (quotation marks omitted). "Nonetheless, in some circumstances, exclusion of members of the public from a judicial proceeding does not implicate the constitutional guarantee." Id. To determine whether a closure implicates the Sixth Amendment, we look to whether the closure affected the values undergirding the right to a public trial, including ensuring fair proceedings, reminding the prosecutor and judge of their grave responsibilities, discouraging perjury, and encouraging witnesses to come forward. Id. Nothing in the record here suggests Harutiunian's exclusion had any effect on these value