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Page 9 of 55 
Page 9 
531 F.3d 197 
(Cite as: 531 F.3d 197) 
350Hk1762 k. Other Of-
fenses, Charges, or Misconduct. Most 
Cited Cases 
Testimony during sentencing phase of 
capital murder trial indicating that interest 
of defendant in Native American and 
Muslim religions was cynical or feigned, 
and that his multiple religiously-related 
grievances reflected failure to adjust to in-
carceration, was relevant, and did not result 
in denial of due process or violate his asso-
ciational or religious rights under First 
Amendment, in context of testimony that 
defendant had successfully adjusted to pris-
op, was genuinely interested m several reli-
gions, and filed grievances for entirely le-
gitimate 
purposes. 
U.S.C.A. 
Const.Amends. 1, 5. 
[33] Constitutional Law 92 4
1170 
92 Constitutional Law 
92X First Amendment in General 
92X(B) Particular Issues and Applic-
ations 
92k1170 k. In General. Most 
Cited Cases 
The First Amendment forbids the un-
cabined reliance on a defendant's abstract 
beliefs 
at 
sentencing. 
U.S.C.A. 
Const.Amend. 1.
1341 Constitutional Law 92 €'1170 
92 Constitutional Law 
92X First Amendment in General 
92X(B) Particular Issues and Applic-
ations 
92k1170 k. In General. Most 
Cited Cases 
Constitutional Law 92 4C=1440 
92 Constitutional Law 
92XVI Freedom of Association 
92k1440 k. In General. Most Cited 
Cases 
The government may introduce evid-
ence of beliefs or associational activities 
without 
violating a 
defendant's 
First 
Amendment rights, so long as they are rel-
evant to prove, for example, motive or ag-
gravating circumstances, to illustrate future 
dangerousness, or to rebut mitigating evid-
ence. U.S.C.A. Const.Amend. 1. 
[35] Sentencing and Punishment 35011 
€=.1.789(3) 
350H Sentencing and Punishment 
350HVIII The Death Penalty 
350HVIII(G) Proceedings 
3501P/111(G)4 Determination and 
Disposition 
350H1c1789 Review of Pro-
ceedings to Impose Death Sentence 
350Hk1789(3) k. Presenta-
tion and Reservation in Lower Court of 
Grounds of Review. Most Cited Cases 
Trial memorandum that specifically ob-
jected to introduction of satanic evidence 
on basis that it "would create a new ag-
gravating circumstances [sic] which the 
government ha[d] not previously alleged," 
and therefore would have violated require-
ment of formal notice under Federal Death 
Penalty Act (FDPA), was not sufficient to 
preserve First Amendment or due process 
challenge to testimony during sentencing 
phase of capital murder trial regarding de-
fendant's cynical or feigned interest in Nat-
ive 
American 
and 
Muslim 
religions. 
U.S.C.A. Const.Amend. 1; 18 U.S.CA. § 
3593(a). 
. [36] Sentencing and Punishment 350H 
C=01789(3) 
350H Sentencing and Punishment 
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Page I I 
531 F.3d 197 
(Cite as: 531 F.3d 197) 
An excited utterance need not be con-
temporaneous with the startling event to be 
admissible; rather, the key question gov-
erning admission is whether the declarant 
was under the stress of excitement caused 
by the event or condition. Fed.Rules 
Evid.Rule 803(2), 28 U.S.C.A. 
[40] Sentencing and Punishment 35011 
(:=1766 
350H Sentencing and Punishment 
350HVIII The Death Penalty 
350HVIII(G) Proceedings 
350HVIII(G)2 Evidence 
35011k1755 Admissibility 
3501-1k1766 
k. 
Hearsay. 
Most Cited Cases 
Statement of highly distraught mother 
of capital murder defendant to bartender 
after mother called for assistance from po-
lice after defendant had aggressively struck 
his mother inside bar and then assaulted 
her once they were outside of bar, that "she 
was afraid of [defendant]," was relevant in 
penalty phase of trial that charged defend-
ant with murder of other person in course 
of carjacking and kidnappmg to rebut mit-
igating factor that defendant had truthfully 
admitted responsibility for victim's murder. 
18 U.S.C.A. §§ 2119(2, 3), 3593(c); 
Fed.Rules Evid.Rule 401, 28 U.S.C.A. 
[41] Sentencing and Punishment 350H 
C=1766 
350H Sentencing and Punishment 
350HVIII The Death Penalty 
350HVIII(G) Proceedings 
350HVIII G)2 Evidence 
350HIc1755 Admissibility 
350Hk1766 
k. 
Hearsay. 
Most Cited Cases 
Statement of highly distraught mother 
of capital murder defendant to bartender 
after mother called for assistance from po-
lice after defendant had aggressively struck 
his mother inside bar and then assaulted 
her once they were outside of bar, that "she 
was afraid of [defendant]," was not unduly 
prejudicial and would not have misled jury 
in penalty *phase of trial that charged de-
fendant with murder of other .person in 
course of carjacking and kidnapping, where 
it was clear from plethora of evidence that 
defendant and his mother had estranged 
and pathological relationship and such 
statement did little other than confirm what 
jury already knew. 18 U.S.C.A. H 2119(2, 
3), 3593(c); Fed.Rules Evid.Rule 403, 28 
U.S.C.A. 
[42] Sentencing and Punishment 350H 
C=1765 
350II Sentencing and Punishment 
350HVIII The Death Penalty 
350HVIII(G) Proceedings 
350HVIII(G)2 Evidence 
350Hk1755 Admissibility 
350H1c1765 k. Declarations 
and Confessions. Most Cited Cases 
Prior statements conveying willingness 
of capital murder defendant to commit 
multiple murders and his desire to kill his 
mother, offered at sentencing phase in re-
sponse to defendant's showing concerning 
abuse and neglect he suffered at hands of 
his parents, was relevant to defendant's 
background and general character and was 
not unduly prejudicial with regard to de-
fendants murder of other person in course 
of carjacking and kidnapping where gov-
ernment never alleged premeditated murder 
as aggravating factor and did not argue in 
closing that defendant ever intended to kill 
his mother and jury was instructed to only 
consider charged aggravating factors. 18 
U.S.C.A. §§ 2119(2, 3), 3591; Fed.Rules 
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531 F.3d 197 
(Cite as: 531 F.3d 197) 
motive for defendant's murder of victim 
did not subsume factor which provided that 
defendant "participated in the murder of 
[victim] after substantial premeditation to 
commit the crime of caijacking'; although 
addressing same caijacking conduct as oth-
er factors, including abduction of victim, 
premeditation factor for caijacking did not 
focus on motive for murder and prosec-
utor's statements did not encourage jury to 
confuse those factors, and thus similar but 
nonetheless distinct concepts justified sep-
arate consideration and separate findings. 
18 U.S.C.A. § 3591 et seq. 
1481 Sentencing and Punishment 350H 
ii;=.1789(9) 
350H Sentencing and Punishment 
35014V111 The Death Penalty 
350HVIII(G) Proceedings 
350HWII(G)4 Determination and 
Disposition 
350Hkl789 Review of Pro-
ceedings to Impose Death Sentence 
350Hk1789(9) k. Harmless 
and Reversible Error. Most Cited Cases 
Any constitutional error in submission 
of aggravating factors in death penalty 
phase would not have affected fairness of 
proceedings in light of instructions to jury, 
where jurors had been instructed to not 
simply 
count 
number of aggravating 
factors in reference to mitigators, but to 
"consider the weight and value of each"; 
thus, jury would have known going into de-
liberations that, in reaching verdict, it 
should make qualitative assessment of ag-
gravating and mitigating evidence as 
whole, rather than focusing on number of 
factors on each side of scale. U.S.C.A. 
ConstAmend. 5; 18 U.S.C.A. § 3591 et seq. 
[49] Indictment and Information 210 
C=113 
210 Indictment and Information 
210V Requisites and Sufficiency of Ac-
cusation 
210k113 k. Matter of Aggravation in 
General. Most Cited Cases 
Government's failure to include non-
statutory aggravating factors in indictment 
did not violate Fifth Amendment's Indict-
ment Clause, where jury, not judge, found 
both statutory and non-statutory aggravat-
ing factors beyond reasonable doubt and 
Federal Death Penalty Act (FDPA) re-
quired only that jury sentencing defendant 
find mental culpability and at least one 
statutory aggravator, both charged in su-
perseding indictment, before finding him 
"eligible for death penalty; thus, factors 
that jury assessed when determining per-
missibility of death penalty did not change 
maximum sentence authorized under stat-
ute. 
U.S.C.A. 
Const.Amend. 
5; 
18 
U.S.C.A. § 3591(aX2). 
[50] Indictment and Information 210 
C=113 
210 Indictment and Information 
210V Requisites and Sufficiency of Ac-
cusation 
210k113 k. Matter of Aggravation in 
General. Most Cited Cases 
The government must charge statutory 
aggravating factors under the Federal 
Death Penalty Act (FDPA) in the indict-
ment. 18 U.S.C.A. § 3591 et seq. 
1511 Sentencing and Punishment 35011 
4D=1626 
35011 Sentencing and Punishment 
350HVIII The Death Penalty 
35011VIII(A) In General 
350Hk1622 Validity of Statute or 
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531 F.3d 197 
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errors in the admission of certain evidence, 
prejudicial comments by the prosecutors, 
and the violation of certain provisions of 
the Federal Death Penalty Act (FDPA), 18 
U.S.C. § 3591 et seq. We affirm. 
BACKGROUND 
This case stems from the brutal 
murders by Fell and his accomplice Robert 
Lee in November 2000 of Fell's mother 
Debra, her companion Charles Conway, 
and King. The facts are largely undisputed. 
Fell, who was 20 years old at the time of 
the murders, does not contest his guilt and 
the government does not contest much of 
the evidence of the troubled childhood and 
adolescence that Fell adduced in an effort 
to avoid the death penalty. 
Fell 
spent 
his 
early 
years 
in 
Pennsylvania with 
parents who were 
chronic alcoholics. Both Fell and his sister 
were raped by babysitters when they were 
young children, abandoned by their par-
ents, and raised by relatives. Fell had fre-
quent brushes with the law of increasing 
seriousness and, fora period of time, was, 
committed to a home for delinquent youth. 
After his release, his involvement with the 
law continued to escalate and was punctu-
ated by serious drug and alcohol abuse. 
Fell's mother moved to Rutland, Ver-
mont in the fall of 1996 and Fell joined her 
in 2000. Their stormy relationship contin-
ued. Fell and his mother (and their friends) 
drank heavily, argued frequently, and ab-
used drugs. For example, in November 
2000, in an incident that was the subject of 
disputed trial testimony, Fell assaulted his 
mother in a bar. After taking his mother's 
drink and attempting to rob her, Fell 
punched her in the head, knocked her to the 
ground and was arrested. 
Fell, Lee, Debra Fell, and Charles Conway 
were playing cards at her residence. All 
were drinking heavily and some were using 
drugs. For reasons not reflected in the re-
cord, a violent altercation ensued. Fell pro-
duced a kitchen knife and stabbed Conway 
approximately 50 times causing his death. 
Lee began stabbing Debra Fell and killed 
her with multiple wounds to the head and 
neck. Fell and Lee then showered, took a 
shotgun that 
Fell 
had 
brought 
from 
Pennsylvania, and left on foot at approxim-
ately 3:30 am for a local mall in search of 
shells for the gun. 
Fell and Lee first went to Wal-Mart, 
but were turned away by a cleaning crew 
that informed them that the store was 
closed. Fell and Lee then approached a 
Price Chopper convenience store, where 
they found King, a 53 year old grandmoth-
er, just arriving for work in her car. Fell 
and Lee stole her car and forced her into 
the backseat at gunpoint. King attempted to 
escape while on the highway but Fell re-
strained her. After driving for several hours 
and entering New York state, Fell told 
King that she would be released. As they 
stopped the car to do so Lee apparently 
had second thoughts and convinced Fell 
that they should kill her to prevent her 
from identifying them. The two *206 
forced King out of her car into the adjoin-
ing woods where they repeatedly kicked 
her and Lee struck her around the head and 
face with a rock. After killing her, Fell 
wiped his boots on her clothing. The two 
proceeded to • Pennsylvania where they 
stole license plates, placed them on King's 
car, and drove to Arkansas where they 
were arrested on November 30th. Follow-
ing questioning by the Arkansas police and 
the FBI, Fell, verbally and in a written 
statement, confessed to the murder of Con-
way, described Debra Fell's murder, and 
On the evening of November 26, 2002, 
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531 F.3d 197 
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of such act or acts; and (4) inten-
tionally and specifically engaged in 
one or more acts of violence, know-
ing that the act or acts created a 
grave risk of death to a person: oth-
er than one of the participants m the 
offense, such that participation in 
such act or acts constituted a reck-
less disregard for human life, and 
Teresca King died as a direct result 
of such act or acts. See 18 U.S.C. § 
359I(aX2)(A)-(D). 
FN2. 
The 
statutory 
aggravating 
factors were: (1) "The death of 
Teresca King occurred during the 
commission of a kidnapping"; (2) 
"Donald Fell committed the offense 
in an especially heinous, cruel, or 
depraved manner in that it involved 
serious physical abuse to Teresca 
King"; and (3) "Donald Fell inten-
tionally killed or attempted to kill 
more than one person in a single 
criminal episode. See 18 U.S.C. §§ 
3592(cX1), (6) & (16). 
FN3. The non-statutory aggravating 
factors were: (1) "Donald Fell parti-
cipated in the abduction of Teresca 
King to facilitate his escape from 
the area in which he and an accom-
plice 
had 
committed a double 
murder"; (2) "Donald Fell particip-
ated in the murder of King to pre-
vent her from reporting the kidnap-
ping and carjacking"; (3) "Donald 
Fell participated in the murder of 
King after substantial premeditation 
to commit the crime of carjacking"; 
and (4) "As reflected by the victim's 
personal characteristics as an indi-
vidual human being and the impact 
of the offense on the victim and the 
victim's 
family, 
the 
Defendant 
caused loss, injury and harm to the 
victim and the victim's family, in-
cluding but not limited to the fol-
lowing: a) Infliction of distress on 
the victim b) Impact of the offense 
on the family of the victim...." See 
18 U.S.C. § 3593(a). 
Fell, represented by the Federal Public 
Defender for the Northern District of New 
York, moved to dismiss the indictment on a 
number of grounds. He contended that the 
FDPA was unconstitutional because it per-
mitted imposition of the death penalty on 
the basis of evidence that had not been 
tested according to the Sixth Amendment's 
guarantee of confrontation or the Fifth 
Amendment's guarantee of due process; or 
that would have been deemed inadmissible 
under the Federal Rules of Evidence. Id. at 
489. The district cqiut granted the motion. 
See United States I. Fell, 217 F.Supp.2d 
469, 491 (D.Vt.2002).Th4
FN4. The painstaking work of Chief 
Judge Sessions generated a number 
f published opinions. United States 
Fell, 
217 
F.Supp.2d 
4 
D.Vt.20021 rev'd United States 
ell, 360 F 
135 (2d Cir.2004)
United States 
Fell, 372 F.Supp.2d 
753 
D.Vt.2 . 5); 372 F.Supp.2d 
73 
Vt.2005); and United States 
.Vt.2005); United States 
Fell, 
ell, 
372 
F.Supp.2 
766 
72 F.Supp.2d 786 (D.Vt.200% . 
The government ap 
ed and we re-
versed. See United States . Fell, 360 F.3d 
135 (2d Cir.2004) r Fell "), cert. denied, 
543 U.S. 946 125 S.Ct. 369, 160 L.Ed.2d 
259 (2004). We held that the Constitution 
did not require adherence to the Federal 
Rules of Evidence. We also found the 
FDPA's evidentiary provisions constitu-
tional because they were consistent with 
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531 F.3d 197 
(Cite as: 531 F.3d 197) 
counts one and two relating to car-
jacking and kidnapping. On the gun 
charges, the court sentenced Fell to 
120 months' imprisonment on count 
four, and 84 months' imprisonment 
on count three, consecutive to count 
four. 
DISCUSSION 
Fell raises a number of issues each of 
which we must consider separately. 18 
U.S.C. § 3595 .nos Most pf our discussion 
*209 considers the district court's exclu-
sion of three jurors, its exclusion of the 
draft plea agreement, the admission of 
evidence of a religious nature, the govern-
ment's compliance with the court's instruc-
tion regarding mental health experts, and 
several allegedly improper arguments made 
by the prosecution, as well as Fell's chal-
lenges to the superseding indictment/NI 
FN6. Specifically, Fell argues that: 
(1) the district court erred in dis-
missing three prospective jurors and 
(2) by excluding a draft plea agree-
ment; (3) the government imp!r-
missibly. argued that Fell's exercise 
of his right to a jury trial was incon-
sistent with acceptance of respons-
ibility; (4) the government imper-
missibly told the jury that it could 
ignore certain mitigating evidence; 
(5) the district courts orders and the 
government's 
conduct 
regarding 
mental health experts in the penalty 
phase violated the Fifth and Eighth 
Amendments; (6) the government 
violated the First, Fifth, and Eighth 
Amendments through its reliance on 
Fell's interest in satanism and other 
religions; (7) the district court erred 
in admitting a hearsay statement 
made by Debra Fell; (8) the district 
court erred in admitting testimony 
Page 19 
by a former friend of Fell's as proof 
of premeditation; (9) the cumulative 
impact of the government's miscon-
duct and the district court's errors 
violated the constitution and the 
Federal Death Penalty Act (FDPA); 
(10) duplicative aggravating factors 
unconstitutionally skewed the jury's 
weighing process towards the death 
penalty; (11) the government was 
required to allege the non-statutory 
aggravating factors in the indict-
ment; and (12) the bifurcated capit-
al trial mandated by the FDPA viol-
ates the Fifth and Sixth Amend-
ments. This opinion resolves each 
of these issues. 
FN7. 18 U.S.C. § 3595(cX1) also 
requires that a reviewing court con-
sider whether a death sentence was 
"imposed under the influence of 
passion, prejudice, or any other ar-
bitrary factor[.]" The record reveals 
no evidence that any of those 
factors led to Fell's sentence. In-
deed, there is every indication that 
the jury carefully considered the 
district court's instructions. Signi-
ficantly, it sua sponte found mitig-
ating factors in addition to those 
proposed 
by 
defense 
counsel. 
"Viewed collectively, these findings 
suggest that the jury considered the 
evidence 
in 
a 
thorough, 
i
even-
handed, anddispassionate manner." 
United States 
Sampson, 486 F.3d 
13, 52 (1st C .2007) Additionally, 
we must independently determine 
that the evidence supported the 
finding of at least one of the 
charged 
statutory 
aggravating 
factors under 18 U.S.C. § 3592. 18 
U.S.C. § 3595(cX1). Given that Fell 
confessed to the crime, we have 
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531 F.3d 197 
(Cite as: 531 F.3d 197) 
that juror would react. See Fell, 372 
F.Supp.2d at 770. Each potential juror was 
then questioned individually, rather than in 
an array, first by the court, which generally 
inquired into exposure to pre-trial publicity 
and views on the death penalty, and then 
by the parties. 
Fell contends that the district court im-
properly excused three qualified prospect-
ive jurors, numbers 64,7(1 and 195, in vi-
olation of Witherspoon 
Illinois, 391 U.S. 
510, 519, 88 S.Ct. 17 
20 L.Ed.2d 776 
(1968) and Wainwright 
Witt, 469 U.S. 
412, 420-21, 105 SA. 44, 83 L.Ed.2d 
841 (1985). Prospective Juror 64, Fell ar-
gues, was excused based on her general 
disfavor of capital punishment. Prospective 
Jurors 141 and 195 were, Fell contends, ex-
cused for expressing reservations about ap-
plying the death penalty under specific fac-
tual circumstances not presented by this 
case, even though they affirmed that they 
could consider and impose a death sentence 
if warranted by the evidence. 
[9][10] Under Witherspoon and its pro-
geny, "not all [prospective jurors] who op-
pose the death penalty are subject to re-
f
oval for cause in capital cases.' Lockhart 
McCree, 476 U.S. 162, 176, 106 S.Ct. 
758, 90 L.Ed.2d 137 (1986). Instead, 
"those who firmly believe that the death 
penalty is unjust may nevertheless serve as 
jurors in capital cases so long as they state 
clearly that they are willing to temporarily 
set aside their own beliefs in deference to 
the rule of law." Id. In Win, the Supreme 
Court explained that "the proper standard 
for determining when a prospective juror 
may be excluded for cause because of his 
or her views on capital punishment ... is 
whether the juror's views would prevent or 
substantially impair the performance of his 
duties as a juror in accordance with his in-
structions and his oath." 469 U.S. at 424, 
105 S.Ct. 844 (internal qs
ation marks 
omitted); see also Uttecht 
Brown, 551 
U.S. 1, 127 S.Ct. 2218, 22 , 167 L.Ed.2d 
1014 (2007). That impairment occurs when 
those views "create an obstacle" to a pro-
spective juror's impartial consideration of 
the law and the facts. Witt, 469 U.S. at 434, 
105 S.Ct. 844. 
[11](12][13] Erroneously excluding a 
prospective juror based on her view on the 
I
eath penalty is reversible error, see Gray 
Mississippi, 481 U.S. 648, 668, 107 S.Ct. 
045, 95 L.Ed.2d 622 (1987)1 and we re-
view *211 challenges to a district court's 
it
exclusion of a juror on that 
is for abuse 
of discretion. United States 
Quinones, 
511 F.3d 289, 304 (2d Cir.2 7). To sur-
vive our review, "voir dire need not estab-
lish juror partiality with 'unmistakable 
clarity.' Rather, it must be sufficient to per-
mit a trial judge to form 'a definite impres-
sion that a prospective juror would be un-
able to faithfully and impartially ag ly the 
law.' " Quinones, 511 F.3d at 301 quoting 
Witt, 469 U.S. at 424, 426, 105 S.Ct. 844). 
As the Supreme Court explained in Witt: 
Many veniremen simply cannot be asked 
enough questions to reach the point 
where 
their 
bias 
has 
been 
made 
"unmistakably clear"; these veniremen 
may not know how they will react when 
faced with imposing the death sentence, 
or may be unable to articulate, or may 
wish to hide their true feelings. Despite 
this lack of clarity in the printed record, 
however, there will be situations where 
the trial judge is left with the definite im-
pression that a prospective juror would 
be unable to faithfully and impartially ap-
ply the law.... [T]his is why deference 
must be paid to the trial judge who sees 
and hears the juror. 
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531 F.3d 197 
(Cite as: 531 F.3d 197) 
that she could not "say to [the court] that 
[she] absolutely and unequivocally, do[es] 
not believe in the death sentence.' When 
pressed further by the court on whether she 
could impose the death penalty under cir-
cumstances where that penalty would be 
appropriate under the law, she responded 
equivocally that she "probably could% yes." 
The government then asked a series of 
questions, culminating in whether Juror 64 
could impose a death sentence if the gov-
ernment carried its burden. She responded: 
"In theory, I'm very opposed to the death 
penalty, but it's part of the process of this 
government, and so I guess if I was sitting 
as a juror, that-and that was part of the pro-
cess, and I had made that decision to do 
that, then, yes, I could make that decision" 
but then further explained: 
Well, I am just playing the question over 
that you asked me in terms of if I could 
do that, and, you know, again, I would 
much more lean towards someone being 
[sentenced to] life without parole, but 1 
think that if ... I had to make that de-
cision, that I could be able to make that 
decision, yes. 
Defense counsel asked Juror 64 wheth-
er she could honestly consider imposing 
the death penalty, and she responded, "Yes." 
Before excusing Juror 64 from the 
courtroom, the court made a final inquiry: 
"[D]o you think that, based on your 
views you might lean unfairly .. toward 
one side or the other? Or do you ' feel that 
you could put aside any views ... [and] be 
very impartial in your decision about 
whether the death penalty is appropriate 
or whether life imprisonment is appropri-
ate?' 
In response, she stated, "I guess I 
would have to say that I would defmitely 
lean more towards life imprisonment than I 
would towards the death sentence, yes." 
After counsel for both sides declined 
the court's invitation to ask follow-up ques-
tions, Juror 64 was excused from the 
courtroom, and 
the 
government 
then 
moved to exclude her for cause. The court 
granted the government's motion, explain-
ing that it could not rely on Juror 64's 
pledge to follow the court's instructions: 
99 percent of the juror's] would say that 
they can follow [the mstructions of the 
court]. The question is whether some-
body, in light of their own particular 
views, can be impartial and fair. And, I 
really wanted an honest response and I 
think I got an honest response at the very 
end.... I asked whether she could be fair, 
and her response was, "I would lean to-
ward life imprisonment" ... I appreciate 
that she said she could follow instruc-
tions but ... I think my responsibility ... is 
to make an analysis of whether somebody
really could be fair and impartial.... 
think that in context,*213 she could not 
be fair and impartial, and so that's the 
Court's ruling, and she is excused. 
Defense counsel objected to the exclu-
sion. 
[16] A prospective juror is not required 
to affirm that she would favor, or lean to-
wardt the death penalty under any particu-
lar circumstances in order to serve. Even 
"those who firmly believe that the death 
penalty, is unjust may nevertheless serve as 
jurors in capital cases," as long as they are 
able to subjugate their own beliefs to the 
need to 
llow the court's instructions. 
Lockhart 
McCree, 476 U.S. 162, 176, 
106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). 
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Fell, 372 F.Supp.2d at 770, the government 
asked Juror 141 whether he could consider 
the death penalty in a case that "didn't in-
volve 
murder, 
but 
simply 
involved 
someone engaging in violence, knowing 
that the act created a grave risk of death-
not premeditated murder." Juror 141 re-
sponded "no" without qualification or elab-
oration. The government then asked wheth-
er he would consider the death penalty in a 
case where the defendant committed an act 
that "constituted a reckless disregard for 
human life [but] not first degree or premed-
itated murder." Juror 141 again replied, un-
equivocally, "No." 
Defense counsel objected to the gov-
ernment's line of questioning. In response, 
the government argued that because reck-
less disregard for human life under 18 
U.S.C. § 3591(aX2)(D) was alleged in the 
indictment as a gatekeeping factor, the 
government had the right to pursue ques-
tions related to whether the juror could im-
pose the death penalty absent evidence of 
intent. Defense counsel then complained 
that this approach constituted a "stake-out" 
to determine whether Juror 141 would im-
pose the death penalty if Fell were found 
guilty of reckless disregard for human life 
rather than whether he could impose death 
in that situation. The district court dis-
agreed, stating that, in conformity with its 
prior ruling on case-specific questioning, 
see Fell, 372 F.Supp.2d at 770, the govern-
ment could ask questions relating to its the-
ory that Fell could be sentenced to the 
death penalty for conduct demonstrating 
recklessness. The court noted that defense 
counsel would have the opportunity to re-
habilitate the juror and allowed the govern-
ment to proceed. 
In the course of the government's con-
tinued questioning, Juror 141 reiterated 
that "I just ... I really feel that the person, 
in order to be convicted of a death penalty, 
needs to have known what they were do-
ing, to realize the consequences of what 
they were doing." Defense counsel then in-
quired into whether Juror 141 could infer 
intent from a description of the violence in-
flicted and "the resulting damage or in-
jury." Juror 141 indicted that he could. Jur-
or 141 also expressed a willingness to 
weigh aggravating and mitigating factors, 
pursuant to the instructions of the court, 
when considering whether death should be 
imposed. After this exchange, the district 
court returned to the issue of whether Juror 
141 would consider imposing the death 
penalty for a killing that was reckless but 
not intentional, describing the reckless acts 
as "kicking or stomping." Juror 141 re-
versed course and claimed that he could 
consider imposing the death penalty on the 
basis of such violence, acknowledging that 
he 
was 
"somewhat 
contradicting 
[himself]." FN.
FN9. Specifically, the following 
colloquy took place: 
THE COURT: If the evidence 
showed that the defendant did not 
intentionally 
kill 
... 
in 
other 
words, did not think about killing 
... but intentionally engaged in an 
act of violence, knowing that the 
act created a grave risk of death, 
and that is, I think the facts, at 
least the defense is suggesting 
here, involved kicking or stomp-
ing, and that is that there wasn't 
necessarily an intent to kill, but 
that it was an intent ... intention-
ally acted with a grave risk of 
death to a person. 
JUROR 141: Right. 
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[18] We see no error in the district 
court's decision to exclude this prospective 
juror. Juror 141's responses were not con-
sistent or clear on whether he understood 
that the death penalty could be imposed for 
murder resulting from reckless disregard 
for human life and whether he would be 
able to apply it under such circumstances. 
A juror's voir dire responses that are am-
biguous or reveal considerable confusion 
may demonstrate substantial impairment. 
Utrecht, 127 S.Ct. at 2229 ("[A juror's] as-
surances that he would consider imposing 
the death penalty and would follow the law 
do not overcome the reasonable inference 
from his other statements that in fact he 
would be substantially impaired in this 
case...."). The district court properly con-
sidered all of Juror 141's responses in the 
context in which they were given and did 
not err in concluding that his views would 
significantly interfere with his duties as 
juror. See Agit, 469 U.S. at 434, 105 S.Ct. 
44; Darden, 477 U.S. at 178, 106 S.Ct. 
2464. We find no abuse of discretion. 
3. Prospective Juror 195 
[19] Prospective Juror 195 rated herself 
as an eight on the ten-point scale of support 
for the death penalty contained in the juror 
questionnaire. Despite her support for the 
death penalty "[tilt a philosophical level," 
she noted that she was unsure whether she 
could vote in favor of *216 it when the 
decision is in [her] hands." In response to 
the court's questions about whether she 
could impose the death penalty if the cir-
cumstances 
warranted, 
she 
repeatedly 
answered "I don't know" or "more yes than 
no" and gauged her ability to do so as 
"60/40." 
The district court's decision to excuse 
Juror 195 turned on her inconsistent and 
generally negative responses when asked 
whether she would consider imposing the. 
death penalty for a single murder. Juror 
195 felt that the death penalty was "not ap-
propriate for every murder" but would be 
justified "if it was a serial killer or mass 
murder, say on a mass shooting spree." She 
also stated that she did not think she would 
vote in favor of the death penalty "for one 
killing." The government moved to exclude 
her for cause following this exchange: 
THE COURT: The question is whether 
you could follow the instruction and con-
sider the possible death penalty for one ... 
if there's only one death. 
JUROR 195: Probably not. I would prob-
ably not be in favor of the death penalty 
in that scenario. 
r20] Under the FDPA, a defendant is 
eligible for the death penalty if the jury 
finds the charged homicide, a statutory in-
tent element or threshold mental culpability 
factor under § 3591(aX2), and at least one 
of the statutory aggravating factors in
3592(c). Although E'en was charged with 
three 
statutory 
aggravating 
factors-in-
cluding committing multiple killings in a 
single 
criminal 
episode 
under 
§ 
3592(c)-two of the factors related to the 
death of King. In the event that the jury 
found that the killings were not part of a 
single criminal episode, Fell would still be 
eligible for the death penalty if the jury 
found at least one of the threshold mental 
culpability factors and that he had caused 
King's death during the commission of a 
kidnapping or that he had committed the 
offense in an especially cruel or depraved 
manner. Therefore, the government argued 
that if Juror 195 could not consider impos-
ing the death penalty without finding that 
Fell engaged in multiple killings, she 
would be substantially impaired in her abil-
ity to follow the law. 
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9-10.01-05. The material is re-
viewed by a Committee appointed 
by the Attorney General, which 
makes a recommendation to the At-
torney General, who then decides 
whether the Government will seek 
the death penalty. After considering 
the 
committee's 
recommendation, 
the views of the relevant U.S. Attor-
ney, and the advice of the Deputy 
Attorney 
General, 
the 
Attorney 
General' will make the final decision 
on whether the government should 
file a notice of intention to seek the 
death penalty in a particular case. 
Id at § 9-10.120. 
In a pre-trial submission, the govern-
ment moved to bar admission of the draft 
agreement as well as information surround-
ing plea negotiations at the guilt and pen-
alty phases of the trial. Fell, 372 F.Supp.2d 
at 781. The government characterized the 
plea ag.reement, a conditional offer that 
was subject to acceptance by the Attorney 
General, as containing the unendorsed 
opinion of the prosecution and embodying 
inchoate compromise negotiations barred 
by Federal Rules of Evidence 408 and 410. 
Fell agreed that the evidence was irrelevant 
at the guilt phase, but opposed the motion, 
claiming that the proposed agreement con-
tained binding judicial admissions that sub-
stantial mitigating factors existed. He also 
contended that the Fifth and Eighth 
Amendments as well as § 3593(c) of the 
FDPA compelled admission of the draft. 
On May 26 2005, the district court ex-
cluded the draft plea agreement-and state-
ments made during plea negotiations-as ir-
relevant because "a prosecutor's statements 
of personal belief regarding jaggravating 
and mitigation] factors should have no 
bearing on the jury's independent evalu-
ation of the evidence." United Stalest. 
Fell, 372 F.Supp.2d 773, 783 (D.Vt.200 . 
The court also emphasized that the state-
ments in the proposed plea agreement were 
never adopted by the government. See id. It 
concluded- that while the draft's probative 
value was negligible*218 because "the 
opinions of the prosecutors [did not] make 
the existence or non-existence of any mit-
igating factor more probable or less prob-
able," id, it could prejudicially distract the 
jury from making its own independent 
evaluation of the mitigating and aggravat-
ing factors. Finally, the court determined 
that public policy disfavored evidence that 
would deter plea bargaining. 
However, the district court permitted 
Fell to introduce during the penalty phase a 
stipulation that he had offered to plead 
guilty to Count 2 in exchange for a sen-
tence of life imprisonment without parole. 
In the court's view, Fell's "offer [was] rel-
evant to the mitigating factor of acceptance 
of responsibility?' Icf. The stipulation in-
formed the jury that "on May 18th, 2001, 
Donald Fell, through his attorneys and in 
writing= offered to plead guilty to Count II 
of the indictment, kidnapping, death result-
ing, in exchange for a life sentence without 
the possibility of release. The government 
refused that offer." In summation, defense 
counsel contended that Fell's attempt to 
plead guilty demonstrated that he had ac-
cepted responsibility, assisted law enforce-
ment, and felt remorse. In response, the 
government argued in closing: 
Ladies and gentlemen, the judge instruc-
ted you. You know the law. Life impris-
onment without the possibility of release 
is the minimum sentence that Donald Fell 
faces for kidnapping with death resulting. 
It's the minimum sentence. When he 
offered to make that plea, he knew the 
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ter or record and any of the circumstances 
of the offense that the defendant proffers as 
a basis for i sentence less than death." 
PNI2 Lockett 
Ohio, 438 U.S. 586 604 
98 S.Ct. 29 4, 57 L.Ed.2d 973 (19783 
(emphasis in original). The Supreme Court 
recognized, however, that its holding did 
not alimit ] 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 of-
fense." Id. at 604 n. 12, 98 S.Ct. 2954. 
Likewise, the FDPA's evidentiary stand-
ards do "not mean that the defense has 
)1c
carte blanche to introduce any and a evid-
ence that it wishes." United States 
Pur-
key, 428 F.3d 738, 756 (8th Cir.200 . Nor 
does the FDPA "eliminate th[e] function of 
the judge as gatekeeper of constitutionally 
permissible evidence.' Fell I, 360 F.3d at 
145. 
FN12. In Fell I, we concluded that 
"to achieve such 'heightened reliab-
ility' [as required in considering a 
sentence of death], more evidence, 
not less, should be admitted on the 
presence or absence of aggravating 
and mitigating factors." Yell I, 360 
F.3d at 143 (erhasis in original); 
see also Gregg 
Georgia, 428 U.S. 
153, 203-04- 6 S.Ct. 2909, 49 
L.Ed.2d 859 (1976) ("So long as the 
evidence 
introduced 
... 
at 
the 
presentence hearing doles] not pre-
judice a defendant, it is preferable 
not to impose restrictions .... [and] 
desirable for the jury to have as 
much information before it as pos-
sible when it makes the sentencing 
decision.")). However, even though 
the FDPA purportedly allows more 
evidence to be considered in the 
penalty phase of a capital case, "the 
presumption of admissibility of rel-
evant evidence is actually narrower 
under the FDPA than under the 
FRE." Fell I, 360 F.3d at 145. 
" 
he balancing test set forth in the 
FDPA is, in fact, more stringent 
than its counterpart in the 
which allows the exclusion of relev-
ant evidence `if its probative value 
is substantially outweighed by the 
danger of unfair prejudice, confu-
sion of the issues, or misleading the 
jury.' " Id. (citing Fed.R.Evid. 403) 
(emphasis added). The FDPA re-
quires only that the probative value 
be "outweighed" by such dangers. 
See 18 U.S.C. § 3593(c). 
The court's exclusion of the draft agree-
ment was within its "traditional authority" 
to exclude evidence of questionable relev-
ance. The district court appropriately con-
cluded that, pursuant to 18 U.S.C. § 
3593(c), the draft agreement's inclusion of 
the unadopted statements of the prosec-
utors lacked evidentiary value and that it 
would distract the jury from an independ-
ent assessment of the mitigating factors. In 
addition, admission of the draft would 
*220 authorize a confusing and unproduct-
ive inquiry into in mplete plea negoti-
ations. See Berger g United States, 295 
U.S. at 88, 55 S.Ct. 629 (stating that the 
opinions of prosecutors should properly 
carry no weiat with the jury); accord 
United States g Melendez, 57 F.3d 238, 
240-41 (2d Cir.1995). For these reasons, 
we see no error-much less abuse of discre-
tion-in the district court's decision to ex-
clude the opinions of the prosecutors set 
forth in the draft plea agreement. 
[24] Fell next argues that the prosecutor 
misrepresented his willingness to plead 
guilty by stating, in closing argument, that 
"if [Fell] wanted to plead guilty he could 
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Fell 
accepts 
responsibility 
for 
what he did. But he pleaded not 
guilty. And that's why we're here. 
And that's why you are here. And 
let's think a little bit about that. 
Think about the very nature of the 
crimes that he's charged with. 
They are all about evasion, about 
escape, about trying to avoid re-
sponsibility for what he did. 
[26] We have held that, when address-
ing the jury, a prosecutor "must avoid com-
menting in a way that trenches on the de-
fendant s constitutional rights and priv-
ileges. For example, [ he may not permiss-
ibly comment on the failure of the defend-
ant to testify, or invite the jury to 
'presume' in the absence of countervailing 
evidence that the government's view of the 
case is correct, or suggest that the defend-
ant has any burden of proof or any obliga-
tion to add 
any evidence whatever." 
United Statesucg Parker, 903 F.2d 91, 98 
(2d Cir.1990). In order to prevail on a 
claim of prosecutorial misconduct, a de-
fendant must demonstrate "that the prosec-
utor's remarks were improper and ... that 
the remarks, taken in the context of the en-
tire trial resu 
in substantial prejudice." 
United States I Bautista, 23 F.3d 726, 732 
(2d Cir.1994). 
The challenged comments occurred in 
response to Fell's endeavor to use the stipu-
lation of his offer to plead guilty to prove 
acceptance of responsibility as a mitigating 
factor. In summation, the prosecution 
sought to place the stipulation in context 
by noting that, when faced with over-
whelming evidence of his guilt, Fell 
offered to plead guilty in exchange for the 
minimum penalty authorized for his con-
duct. When this offer was not accepted, the 
government proceeded to a trial that Fell 
could have avoided by pleading uncondi-
tionally. At that trial, the government was 
put to a burden which it met. We believe 
these arguments-which the jury was re-
peatedly told were not evidence-were reas-
onable responses to Fell's use of the stipu-
lation. No error occurred. See Darden, 477 
U.S. at 183, 106 S.Ct. 2464. 
III. PROSECUTOR'S STATEMENTS RE-
GARDING CONSIDERATION OF MIT-
IGATING FACTORS 
127] Fell next contends that he was 
denied a fair sentencing hearing because 
the prosecutor erroneously argued that the 
jury could not consider mitigating evidence 
that was unrelated to the crimes for which 
he had been found guilty. During summa-
tion, the prosecutor made the following ar-
guments: 
Mou should consider, one, [w]hat do 
these factors have to do with the crimes 
in this case? And do these factors actu-
ally lessen the defendant's responsibility 
and culpability for these crimes? . . 
[E]ven if you find evidence of some of 
those mitigating factors, we submit to 
you that the weight of these factors is not 
that heavy, and you need not give them 
much, if any, weight based upon those 
two questions ... 
... you have heard so much about the de-
fendant's childhood, so much about his 
back wound, and again, let me just re-
mind you, the question is, we submit to 
you, what's the connection between his 
background and childhood and these 
crimes? What about his background and 
childhood makes him less responsible, 
less culpable? What about them means 
that he should receive a less-a lesser sen-
tence? 
The question is, what does that sexual as-
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court relied deal with the scope of 
a court's authority to exclude 
evidence that "[r]easonable jurists 
could conclude ... was relevant 
mitigating 
evidence." 
Tennard, 
542 U.S. at 288, 124 S.Ct. 2562; 
McKoy, 494 U.S. at 442, 110 
S.Ct. 1227 ("Under our decisions, 
it is not relevant whether the bar-
rier to the sentencer's considera-
tion of all mitigating evidence is 
interposed by statute, by the sen-
tencing court, or by an evidentiary 
ruling:' (quoting Mills, 486 U.S. 
at 375 108 S.Ct. 1860 (citations 
omitted))). They further note that 
the Supreme Court has never held 
that, when arguing the weight of 
the evidence, a prosecutor may 
not 
question 
the 
connection 
between mitigating evidence and 
the defendants crime of convic-
tion. Finally, they conclude that 
the prosecutorial comments at is-
sue in the instant case do not dif-
fer in substance from the com-
ments that the Supreme Court 
found acceptable in Boyde. See, 
e.g., 494 U.S. at 385, 110 S.Ct. 
1190 (noting that the prosecutor 
had "argued to the jury that the 
mitigating 
evidence 
did 
not 
'suggest that [Boyde's] crime is 
less serious or that the gravity of 
the crime is any less' and that 
Injothing I have heard lessens the 
seriousness of this crime'
(quoting Boyde trial record). In 
sum they do not see the prosec-
utor's observations about the lack 
of nexus between Fell's mitigating 
evidence and Fell's crime of con-
viction as "separate" from the 
prosecutor's arguments about the 
weight that the jury should accord 
to that mitigating evidence. It is 
not improper for a prosecutor to 
argue that, because such a nexus 
is absent, the mitigating evidence 
should be given little or no weight. 
Judge Parker, on the other hand, 
agrees with the district court that 
the prosecutor permissibly argued 
that the weight of the mitigating 
evidence did not lessen -Fen 
culpability, see Boyde, 494 U.S. at 
385, 110 S.Ct. 1190, but imper-
missibly suggested that the juror 
should disregard the mitigating 
evidence 
because 
it 
did 
not 
"connect" to the charged crimes. 
He focuses on the prosecution's 
language: "What's the evidence of 
mitigating factors? To the extent 
that you find some, there are not 
that many, respectfully, and they 
don't really relate to the crimes' 
as demonstrating that the prosecu-
tion improperly contended that 
mitigation evidence could be ig-
nored because it bore no nexus to 
the crime. See Tennard 542 U.S. 
at 
285, 
124 
S.Ct. 
2562 
(concluding 
that 
"the 
Eighth 
Amendment requires that the jury 
be able to consider and give effect 
to a capital defendant's mitigating 
evidence") 
(internal 
citations 
omitted). He further believes that 
Boyde has no applicability where 
a prosecutor makes, in addition to 
an 
argument 
challenging 
the 
weight of the mitigating evidence, 
a separate argument questioning 
the relevance of that evidence. 
Regardless, we need not resolve 
these differences as we find that 
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IV. MENTAL HEALTH EVIDENCE 
[30] Fell next argues that the govern-
ment committed misconduct by violating a 
district court order concerning mental 
health evaluations. During the course of 
plea negotiations in 2001, the defense 
provided a variety of mitigation informa-
tion to the government, including the dis-
closure that it had hired experts to conduct 
mental health evaluations of Fell. After re-
jecting the proposed plea agreement and 
filing its notice of intent to seek the death 
penalty, the government moved for discov-
ery of all mental health evidence and for 
Fell to submit to an examination by a gov-
ernment expert. Although the court never 
ruled on this motion,Ros the defense vol-
untarily produced the reports and agreed to 
limited evaluations by two government ex-
perts, doctors Richard Wetzel and John 
Rabun. Fell, 372 F.Supp.2d at 758. The 
district court later observed that the limita-
tions were appropriate because "in absence 
of Fed.R.Cnm.P. 12.2(c), Fell's statements 
could be used as evidence against him at 
trial." 0m6 Fell, 372 F.Supp.2d at 758. 
Drs. Wetzel and Rabun both produced re-
ports based on their examinations of Fell. 
FN15. In late 2002, Federal Rule of 
Criminal 
Procedure 
12.2 
was 
amended to codify a common-law 
sanctioned practice of the court or-
dering discovery and mental health 
examinations by the government's 
experts upon notice by the defend-
ant of intent to produce mental 
health 
evidence. 
FED.R.CRIM.P. 
12.2 
advisory 
committee's 
note 
(2002) 
FN16. The 2002 amendments to 
Rule 12.2 also allowed the govern-
ment to admit statements made by a 
defendant during a medical examin-
ation by a government expert if the 
defendant had introduced his own 
expert mental health evidence. FED 
R.CRIM. P. 12.2 advisory commit-
tee's note (2002). The rule now 
provides that: 
No statement made by a defendant 
in the course of any examination 
conducted 
under 
this 
rule 
(whether 
conducted 
with 
or 
without the defendant's consent), 
no testimony by the expert based 
on the statement, and no other 
fruits of the statement may be ad-
mitted into evidence against the 
defendant in any criminal pro-
ceeding except on an issue regard-
ing mental condition on which the 
defendant: 
(A) has introduced evidence of in-
competency or evidence requiring 
notice under 
Rule 
12.2(a) or 
(bxl), or 
(B) has introduced expert evid-
ence in a capital sentencing pro-
ceeding requiring notice under 
Rule 12.2(bX2). 
FED.R.CRIM.P. 
12.2(cX4) 
(emphasis added). 
After we decided Fell I, in December 
2004, the defense gave formal notice that it 
planned to introduce expert evidence on 
Fell's 
mental 
condition. 
See 
FED.R.CRIM.P. *225 12.2(bpN17 Sub-
sequent to that announcement, the govern-
ment moved for a court-ordered examina-
tion of Fell's mental health pursuant to 
Federal 
Rule of Criminal 
Procedure 
12.2(cX1)(B). The government then re-
quested an unrestricted examination of Fell 
by a third expert, Dr. Michael Weiner, it 
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agreement with the *226 defense by decid-
ing after two years that it wanted a new ex-
pert. Id. The court also denied as premature 
Fell's motion to exclude Weiner's testi-
mony, holding that the nature and scope of 
Webees anticipated rebuttal testimony was 
unclear but that, even without interviewing 
Fell, his testimony might "shed light on 
Fell's upbringing and other relevant factors 
concerning sentencing." Id. Accordingly, 
the court declined to rule on admissibility 
prior to the government's disclosure of the 
scope of Weiner's projected testimony. 
Pursuant to the court's April 7 2005 or-
der, Wetzel interviewed Fell and prepared 
a report explaining his findings. Fell, 2006 
U.S. Dist. LEXIS 247071 at *8. A video re-
cording of the Wetzel interview was sub-
sequently provided to Weiner who com-
piled a report based on that interview. At 
the sentencing phase of the trial, Fell 
moved to exclude parts of Wetzel's report 
and also sought a copy of Weiner's report. 
On July 5, 2005, after the government had 
rested, it disclosed Weiner's report as 
ordered by the district court. The report re-
vealed that Weiner had supplied questions 
for Wetzel to ask Fell and had administered 
psychological tests that had not been previ-
ously disclosed to the defense-the Psycho-
pathy Checklist-Revised CPCL-R"), the 
Violent Risk Appraisal Guide ("VRAG"), 
and the Historical/Clincal/Risk Manage-
ment (HCR-20)-to assess Fell's capacity for 
future violence. Id at *13. Weiner admit-
ted that in scoring the PCL-R, he relied on 
Wetzel's videotaped interview. Weiner's as-
sessment based on these tests was that Fell 
was a psychopath and that sexual and phys-
ical abuse had played little role in his de-
velopment. 
The following day, Fell moved to ex-
clude Welnees report and testimony, ar-
guing that by supplying questions for Wet-
zel to ask him, Weiner had used Wetzel as 
a proxy for interviewing Fell in violation of 
the court's April 7 order and that the gov-
ernment administered new testing without 
providing notice. The court scheduled a 
hearing on July 11 to address this issue and 
others regarding Weiner's proposed testi-
mony. Before the hearing took place, 
however, Fell changed course and elected 
not to call! a mental health expert. FN"" Id. 
at *15. The next day, the defense and the 
government entered into a stipulation to the 
effect that Fell suffered from no mental 
disease or defect and knew the difference 
between right and wrong at the time of the 
murders m, As a result the govenunent 
presented no mental health evidence during 
the penalty phase. Id at*15-16. 
FNI8. Prior to this, Fell had already 
decided not to call another mental 
health expert, Dr. Mills, as part of 
its mitigation case. Mills was sched-
uled to testify on the first day of the 
defense's case, but the defense de-
cided that it would save Mills's 
testimony for surrebuttal. 
FN19. The full stipulation provided: 
[A]fter his arrest in late 2000, 
Donald Fell was subjected to full 
psychological and psychiatric ex-
aminations. 
Those 
examinations 
determined that, one, he had no 
cognitive or neurological deficits; 
two, his intellect and cognitive 
functions were intact; three, he 
did not suffer from any mental 
disease or defect. The examina-
tion also found that fell was com-
petent to stand trial, and knew the 
difference 
between 
right 
and 
wrong at the time of offenses on 
November 27, 2000. 
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they were growing up, she testified that 
Fell initially did not believe in God and on 
several occasions jokingly characterized 
Satan as "the kindest beast.' She also testi-
fied that Fell had a tattoo of an upside-
down cross with "666," which she believed 
he had gotten when he was 15 or 16 years 
old. However, Teri Fell explained that she 
did not believe that Fell worshiped Satan. 
James Rushlow testified on direct ex-
amination as to Fell's adjustment in prison 
and his participation in certain religious 
and educational opportunities afforded by 
the institution. On cross-examination/ the 
prosecution confirmed that Fell had signed 
*228 up for Christian Bible Studies, and 
asked Rushlow: "During your time work-
ing with Mr. Fell, has he also claimed to 
practice Native American rituals?" In re-
sponse, Rushlow testified that Fell had 
filed a grievance and a lawsuit seeking the 
right to perform Native American rituals. 
With no objection from the defense, the 
government introduced into evidence a cer-
tified copy of the record in that litigation 
Rushlow further stated that Fell had 
wanted to participate in Ramadan, as a 
Muslim, and that he had filed numerous 
other grievances for himself and on behalf 
of others. In addition, Rushlow testified, 
without objection, that Fell had both a 
"666" tattoo and one of an anarchy symbol. 
FN20. Defense counsel stated that 
he had no objection to the certified 
record being entered into evidence 
but he "may well" have an objec-
tion to Rushlow being asked to 
comment on it. 
The defense called James Aiken to 
testify further about Fell's positive adjust-
ment in prison. The government cross-
examined Aiken regarding the possibility 
of Fell committing future assaults, and 
asked him to describe the significance of 
Fell's "666" tattoo. He responded: 
Well, the 666 denotes possible involve-
ment in some type of relationship with an 
organization. I will leave it at that be-
cause I have not dwelled into that from 
the intelligence reports. Number two is 
that I am more concerned about who he's 
controlling at the prison. And he's not 
controlling anybody. 
The prosecutor's summation made no 
reference to Fell's tattoos or Fell's purpor-
ted satanic interest and made no attempt to 
explain the relevance of this evidence to 
the murders. The prosecutor did, however, 
argue that Fell had not made positive con-
tributions while incarcerated because he 
generated numerous grievances and filed a 
lawsuit which was predicated on a feigned 
interest in multiple religions.
) 
FN21. Specifically, the government 
argued that: 
They want to claim that he is [sic] 
a positive contribution in resolv-
ing grievances? You heard from 
Jason Rushlow. The man gener-
ated grievances. Are you kidding 
me? You saw the lawsuit. You 
can read it for yourself when you 
go back there. This man signs up 
for bible study, and then files a 
lawsuit claiming to be American 
. a Native American. He files a 
lawsuit so that he can practice his 
Native American religion on the 
yard. It's bogus, ladies and gentle-
men. You know it's even more 
bogus, because, believe it or not, 
he observes Ramadan as a Muslim. 
[33][34] The First Amendment forbids 
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other grounds, Miller-El t i  Cock-
rell, 537 U.S. 322, 123 S. . 1029, 
154 L.Ed.2d 931 (2003), Fuller 
Johnson, 114 F.3d 491, 498 ( 
Cir.1997) (distinguishing Dawson 
based on the fact that the govern-
ment presented evidence that de-
fendant was a member of a gang 
that had committed violen and un-
lawful acts); Wainwright . Lock-
hart, 80 F.3d 1226, 1 4 (8th 
Cir.1996) (ruling that questioning 
of defendant on involvement in 
street gang "did not serve any prop-
er rebuttal purpose" where "[tihere 
was no credible, admissible evid-
ence that [the defendant's] crime 
was gang-related, that [the defend-
ant] belonged to a gang or that gang 
membership would impeach [the 
defendant's testimony] about his 1- 
ligious beliefs"); United States
Robinson, 978 F.2d 1554, 15 5 
(10th Cir.1992) (rejecting a First 
Amendment challenge because "the 
government presented adequate ex-
pert testimony as to the meaning of 
the gang affiliation evidence"). 
I. Native American and Muslim Religious 
Interests 
We conclude that the testimony regard-
ing Fell's interest in Native American and 
Muslim religions was relevant in the con-
text in which the testimony was elicited. 
Fell undertook to prove the following mit-
igating factor: "Donald Fell has made pos-
itive contributions to the Northwest Cor-
rectional Facility by working, gaining an 
education, and helping to resolve inmate 
grievances." In support of this factor, 
Rushlow testified that Fell was picked by 
management to act as a unit representative 
for other inmates, took part in Bible study 
and other educational opportunities, and 
had a disciplinary record reasonably free of 
infractions. However, on crossexamination, 
Rushlow retreated from several of his prior 
assertions. He conceded that Fell did- not 
"resolve inmate grievances" but instead 
manufactured grievances based on his pur-
ported religious beliefs. The government 
also showed that while Fell participated in 
Bible studies, he simultaneously filed 
grievances and a lawsuit demanding that 
"sweat lodges" and "talking circles" be 
made available in the prison so that he 
could engage in Native American religious 
practices. During that same *230 period, 
Fell also participated in Ramadan. The 
government elicited testimony that Fell 
was appointed unit manager in part because 
his familiarity with the administrative pro-
cedures, due to his constant filing of com-
plaints, made it easier to have the other in-
mates funnel their grievances through him. 
The jury was free to find that Fell had 
successfiilly adjusted to prison, was genu-
inely interested in several religions, and 
filed grievances for entirely legitimate pur-
poses. By the same token, the jury was also 
free to find that Fell's interest in multiple 
religions was cynical or feigned and that 
his multiple grievances reflected a failure 
to adjust to incarceration. Contrary to Fell's 
contention that the evidence was intended 
to incite religious prejudice, the testimony 
was reasonably elicited to present a more 
complete picture of Fell that belied the one 
of a well-adjusted inmate offered by the 
defense. In any event, the evidence played 
a very minor role in the trial and added 
little to the quantum of evidence before the 
jury. We see no error and certainly no plain 
error in its admission. 
2. Satanic Beliefs and "666" Tattoo 
[36] We are more troubled by the testi-
mony that the government elicited regard-
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account of his relationship with his mother. 
In this confession, he recalled an incident 
at a local bar involving a physical alterca-
tion in which his mother was the aggressor. 
The government called Thompson, the 
bartender at the local bar, to show that Fell 
had not given a truthful account of the al-
tercation to the authorities investigating 
King's murder. Thompson testified that 
Fell aggressively struck his mother inside 
the bar and then assaulted her once they 
were outside of the bar. Thompson stated 
that she then called 911. After the police 
arrived and arrested Fell, his mother, 
highly distraught, returned to the bar and 
told Thompson that: 
She couldn't take it. She didn't want to go 
back home. She was afraid to go home. 
And I said to her, why don't you have 
him leave your home if you are afraid of 
him. She said I can't he's my son and I 
love him. 
Prior to Thompson's testimony, the dis-
trict court ruled that Fell's mother's state-
ment that "she was afraid of [Fell]" quali-
fied as an excited utterance under Federal 
Rule of Evidence 803(2), a "firmly rooted" 
hearsay exception under Ohio 
Roberts, 
448 U.S. 56, 63-66, 100 S.Ct. 2531, 65 
L.Ed.2d 597 (1980) (holding that the Con-
frontation Clause requires that a hearsay 
exception be firmly rooted and reliable). 
The court concluded that Thompson's testi-
mony was relevant to impeach aspects of 
Fell's confession-particularly "to rebut the 
defense's claim that Donald Fell gave a 
truthful confession"-was reliable for Con-
frontation Clause purposes and was not un-
duly prejudicial under 18 U.S.C. 5 3593(c). 
Because Fell preserved his objection to this 
testimony at trial, we review this eviden-
tiary ruling for abuse of discretion. Yousef 
327 F.3d at 156. 
[39[40](41] No abuse of discretion oc-
curred here. First, although Fell claims that 
his mother's statement was too attenuated 
to qualify as an excited utterance, "an ex-
cited utterance need not be contemporan-
eous with the start event to be admiss-
ible." United States . Jones, 299 F.3d 103, 
112 (2d Cir.2002). 
ther, the key question 
governing admission is "whether the de-
clarant was, within the meaning of Rule 
803(2), 'under the stress of excitement 
caused by the event 
condition.' " Id. 
(quoting United States . Scarpa, 913 F.2d 
993, 1017 (2d Cir.199 ). We find that the 
stressful events surrounding the statement 
support applying the excited utterance rule. 
See id. at 113. In any event, the FDPA per-
mits the admission of evidence at the pen-
alty phase *232 regardless of its admissib-
ility under the Federal Rules of Evidence. 
See Fell I, 360 F.3d at 144. The district 
court correctly admitted this statement be-
cause it was relevant to rebut the mitigating 
factor that Fell had truthfully admitted re-
sponsibility for Teresca Kings murder. The 
statement was not unduly prejudicial and 
would not have misled the jury. See 18 
U.S.C. § 3593(c). It was clear from a pleth-
ora of evidence that Fell and his mother 
had an estranged and pathological relation-
ship and Thompson's testimony did little 
other than confirm what the jury already 
knew. 
[42] Fell also challenges the admission, 
through the testimony of Matt Cunning-
ham-a teenage friend of Fell's-of prior 
statements conveying Fell's willingness to 
commit multiple murders and his desire to 
kill his mother. The evidence was offered 
in response to Fell's showing concerning 
the abuse and neglect he suffered at the 
hands of his parents. Fell argued that be-
cause the prejudicial value of the evidence 
exceeded its probative value, its admission 
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prejudice from a "bleed-over" effect poten-
tially allowing the jury to find the unal-
leged aggravating factor-that the murders 
were premeditated-we are confident that 
the court's instruction that the jury only 
consider the charged aggravating factors 
adequately dealt with this remark.nas Fi-
nally, it is unquestioned that the jury knew 
from other 
testimony 
that Fell was 
"extraordinarily angry" with his mother 
and that he watched Lee stab her multiple 
times without intervention. 
FN25. Although Fell summarily al-
leges Fifth and Eighth Amendment 
violations related to the admission 
of Cunningham's testimony, he of-
fers 
no 
supporting 
arguments. 
"Issues not sufficiently argued in 
the briefs are considered waived 
and normally will n 
be addressed 
on appeal." Norton I. Sam's Club, 
145 F.3d 114, 117 (2d Cir.1998); 
see United States 
Crispo, 306 
F.3d 71, 86 (2d Cir. 002) (applying 
this rule to a criminal appeal); Fed. 
R.App. P. 28(b). 
VII. CUMULATIVE EFFECT 
[44] Fell contends that even if none of 
the alleged errors warrants reversal, the cu-
mulative effect of the government's mis-
conduct and the district court's erroneous 
admission of evidence rendered the pro-
ceedings fundamentally unfair. It is well-
settled in this circuit that the effect of mul-
tiple errors in a single trial may cast such 
doubt on the fairness of the proceedings 
that a new trial is warranted, even if no 
(
ngle error requires reversal. United States 
Rahman, 
189 F.3d 88 
145 (41 
ir.1999); see also United States I. 
Salameh, 152 F.3d 88, 157 (2d Cir.1998). 
[45] Nonetheless, not every error-
whether alone or in combination with oth-
ers-warrants a new trial. Cl Delaware A. 
Van Arsdall, 475 U.S. 673, 681, 106 S.
1431z 89 L.Ed.2d 674 (1986) ("[T]he Con-
stitution entitles a criminal defendant to a 
fair trial, not a perfect one."). As we have 
discussed, the trial conduct challenged by 
Fell either was not improper, was not pre-
judicial, or fails plain error review. The 
district court's evidentiary rulings were 
thoughtful 
and 
meticulous; 
none ap-
proached an abuse of its broad discretion. 
Because considered singly, none of the er-
rors claimed by Fell undermine our confid-
ence in the fairness of the proceeding, we 
similarly conclude that, given the care and 
soundness with which this trial was con-
ducted, "the cumulative error doctrine 
finds no foothold in this appeal," Sampson, 
486 F.3d at 51. We now turn to Fell re-
maining challenges. 
VIII. OVERLAP OF AGGRAVATING 
FACTORS 
[46] During the penalty phase, the dis-
trict court instructed the jury to consider 
three statutory aggravating factors and four 
non-statutory aggravating factors, as well 
as nineteen mitigating factors. Fell argues 
that three of the non-statutory aggravating 
factors substantially overlapped- because 
they rest on the same factual- predicate-that 
Fell intentionally participated*234 in the 
death of King. He maintains that by finding 
this fact, the jury could more easily find 
aggravating factors and then more easily 
find that those factors outweighed the mit-
igating factors presented by Fell. Accord-
ingly, Fell contends, the overlap of aggrav-
ating factors necessarily skewed the jury's 
decision-making in favor of the death pen-
alty. We disagree. 
The factors in question are: 
(1) Donald Fell participated in the abduc-
tion of Teresca King to facilitate his es-
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