                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 98-2549
                               ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Eastern District of Missouri.
Billie Jerome Allen,                     *
                                         *           [PUBLISHED]
            Appellant.                   *

                               ________________

                               Submitted: September 15, 2004
                                   Filed: May 2, 2005
                               ________________

Before LOKEN, Chief Judge, RICHARD S. ARNOLD,1 WOLLMAN, HANSEN,
MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH,
COLLOTON, and BENTON, Circuit Judges.
                           ________________

HANSEN, Circuit Judge.

      Billie Jerome Allen and Norris G. Holder were convicted of the violent St.
Patrick’s Day, 1997, armed robbery of the Lindell Bank & Trust in St. Louis,
Missouri, during which security guard Richard Heflin was killed. In accordance with
the Federal Death Penalty Act (FDPA), the grand jury returned an indictment that

      1
         The Honorable Richard S. Arnold died on September 23, 2004. This opinion
is filed by the remaining judges of the en banc court. See 8th Cir. R. 47E.
charged the elements of the offenses. After the indictment was returned and before
a trial was conducted, the government filed a notice of intent to seek the death penalty
pursuant to 18 U.S.C. § 3593(a) that set forth both the statutory aggravating factors
contained in 18 U.S.C. § 3592(c) and the mens rea requirement from 18 U.S.C.
§ 3591(a)(2) which, if proved to the petit jury beyond a reasonable doubt, made the
offenses eligible for the death penalty. After a trial, the petit jury found Allen guilty
of killing a person during the course of a bank robbery, in violation of 18 U.S.C.
§ 2113(a) and (e), and of murdering a person with a firearm used during and in
relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) and (j)(1). After
the penalty phase, the petit jury determined that a sentence of life imprisonment was
justified on Count I and that a sentence of death was justified on Count II. The
district court2 sentenced Allen accordingly.

       On appeal, a divided panel of this court affirmed Allen’s convictions and
sentence in all respects. United States v. Allen, 247 F.3d 741 (8th Cir. 2001). In
particular, we rejected his argument that the Fifth Amendment required the statutory
aggravating factors to have been charged by the grand jury and included in the
indictment. We applied the holding of Walton v. Arizona, 497 U.S. 639, 647-49
(1990), that aggravating factors are not elements of a capital offense for Sixth
Amendment purposes. Allen, 247 F.3d at 761-64. Allen petitioned the United States
Supreme Court for a writ of certiorari.

      While Allen’s petition was pending, the Supreme Court decided Ring v.
Arizona, 536 U.S. 584 (2002). Ring held that aggravating factors are the functional
equivalent of elements of a capital offense for Sixth Amendment purposes, and
consequently overruled Walton in relevant part. Id. at 609. The Supreme Court
granted Allen’s petition for a writ of certiorari, vacated our judgment, and remanded


      2
        The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
                                           -2-
the case to us for further consideration in light of Ring. Allen v. United States, 536
U.S. 953 (2002). On remand, a divided panel of this court concluded that it was error
not to charge at least one statutory aggravating factor in Allen’s indictment, and that
although the error was not structural, the indictment defect was not harmless beyond
a reasonable doubt. United States v. Allen, 357 F.3d 745, 748-58 (8th Cir. 2004).
We subsequently granted rehearing en banc and vacated the panel’s judgment.

        We now confront the following questions: (1) Does the Fifth Amendment
require that at least one statutory aggravating factor and the mens rea requirement be
found by the grand jury and charged in the indictment? (2) If Allen’s indictment was
defective, was the error structural or subject to review for harmless error? (3) If our
review is for harmless error, was the error harmless beyond a reasonable doubt? (4)
Is the FDPA unconstitutional because it directs the government to charge aggravating
factors in a notice of intent to seek the death penalty rather than in an indictment?

      We address these issues seriatim and, ultimately, we again affirm Allen’s
convictions and sentence.

                                          I.
       Ring was a case about a defendant’s Sixth Amendment right to have capital
aggravating factors proven to the petit jury beyond a reasonable doubt because they
are facts that increase the penalty for his crime beyond the otherwise applicable
statutory maximum. In Allen’s case, the petit jury made the findings that Ring
expressly requires. Ring did not address whether the Fifth Amendment also requires
capital aggravating factors to be found by the grand jury and included in the
indictment. Nonetheless, we think that Ring necessarily implies such a Fifth
Amendment requirement.

      Ring did not address the indictment issue because it involved a state
prosecution, and the Fifth Amendment’s grand jury requirement has not been

                                          -3-
construed to apply to the states. The same is true of the predecessor to Ring,
Apprendi v. New Jersey, 530 U.S. 466, 477 n.3 (2000). We therefore look to the
predecessor to Apprendi, Jones v. United States, 526 U.S. 227 (1999), which did
involve a federal prosecution. There, we find the rule that “under the Due Process
Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth
Amendment, any fact (other than prior conviction) that increases the maximum
penalty for a crime must be charged in an indictment, submitted to a jury, and proven
beyond a reasonable doubt.” Id. at 243 n.6; see also Apprendi, 530 U.S. at 476 (same
(quoting Jones)).

        In other words, the same facts that the Sixth Amendment requires to be proven
to the petit jury beyond a reasonable doubt in state and federal prosecutions must also
be found by the grand jury and charged in the indictment in federal prosecutions. We
therefore conclude that the Fifth Amendment requires at least one statutory
aggravating factor and the mens rea requirement to be found by the grand jury and
charged in the indictment. See United States v. Robinson, 367 F.3d 278, 284 (5th
Cir.), cert. denied, 125 S. Ct. 623 (2004); United States v. Higgs, 353 F.3d 281, 299
(4th Cir. 2003), cert. denied, 125 S. Ct. 627 (2004); United States v. Quinones, 313
F.3d 49, 53 n.1 (2d Cir. 2002), cert. denied, 540 U.S. 1051 (2003). The indictment
must include at least one statutory aggravating factor to satisfy the Fifth Amendment
because that is what is required to elevate the available statutory maximum sentence
from life imprisonment to death. In turn, at least one of the statutory aggravating
factors found by the petit jury in imposing the death sentence must have been one of
the statutory aggravating factors charged by the grand jury in the indictment. See
Higgs, 353 F.3d at 299 n.7. The same is true of the mens rea requirement.

      Having reached this conclusion, it is clear that Allen’s indictment suffers a
Fifth Amendment defect. The petit jury found two statutory aggravating factors in
sentencing him to death: that Allen “in the commission of the offense, or in escaping
apprehension . . ., knowingly create[d] a grave risk of death to one or more persons

                                          -4-
in addition to Richard Heflin,” and that he “commit[ted] the offense in the
expectation of the receipt of anything of pecuniary value.” The petit jury also found
the requisite mental state in sentencing Allen to death: that he “intentionally inflicted
serious bodily injury which resulted in the death of Richard Heflin.” The government
had included these factors and the mens rea requirement in its notice of intent to seek
the death penalty, but they were not charged in the indictment because Allen’s
prosecution preceded Ring by years. Allen presciently raised a Jones-type objection
before the district court, preserving this error for our review. Hence, this is not a
plain-error case. We next consider whether the failure to charge at least one statutory
aggravating factor and the mens rea requirement in the indictment was structural
error.

                                            II.
       Allen rightly directs our attention to the strongest case in his favor, Stirone v.
United States, 361 U.S. 212 (1960). Stirone was charged by indictment with
unlawfully interfering with the movement of sand in interstate commerce for use in
mixing concrete. Over his objections, the district court allowed the government to
present at trial evidence that Stirone also interfered with the movement of steel in
interstate commerce, and the district court instructed the jury that Stirone was guilty
if he interfered with either sand or steel that moved in interstate commerce. See id.
at 213-14. The Supreme Court found a violation of Stirone’s Fifth Amendment right
to indictment by a grand jury, concluding that “[d]eprivation of such a basic right is
far too serious to be treated as nothing more than a variance and then dismissed as
harmless error.” See id. at 215-17. Concluding that “neither this nor any other court
can know that the grand jury would have been willing to charge that Stirone’s
conduct would interfere with interstate exportation of steel,” and that “it cannot be
said with certainty that with a new basis for conviction added, Stirone was convicted
solely on the charge made in the indictment the grand jury returned,” the Supreme
Court overturned his conviction. See id. at 217-19. Stirone quoted Ex parte Bain,
121 U.S. 1, 10 (1887), for the proposition that it is beyond “the province of a court

                                           -5-
to change the charging part of an indictment to suit its own notions of what it ought
to have been, or what the grand jury would probably have made it if their attention
had been called to suggested changes.” See Stirone, 361 U.S. at 216.

       Allen urges that Stirone and Bain show that the defect in his indictment must
be treated as a structural error requiring automatic reversal without a showing of
prejudice to the defendant. We cannot agree. At the time of Stirone and Bain, the
Supreme Court had not yet grappled with the question whether constitutional error
can be harmless. The Court did so expressly for the first time in Chapman v.
California, 386 U.S. 18, 20, 23-24 (1967), when it rejected the view that all
constitutional errors automatically call for reversal and held that–with a few
exceptions–federal courts may not grant relief when a constitutional error is shown
to be harmless beyond a reasonable doubt. Next, in Rose v. Clark, 478 U.S. 570, 578
(1986), the Court “emphasized . . . that while there are some errors to which Chapman
does not apply, they are the exception and not the rule.” “Accordingly, if the
defendant had counsel and was tried by an impartial adjudicator, there is a strong
presumption that any other errors that may have occurred are subject to
harmless-error analysis.” Id. at 579.

       Then, in Arizona v. Fulminante, 499 U.S. 279, 309 (1991), the Supreme Court
surveyed its precedent to identify exactly which constitutional errors constitute
“structural defects . . . which defy analysis by ‘harmless-error’ standards.” The Court
identified five such errors: the total deprivation of the right to counsel, the denial of
the right to an impartial judge, unlawful discrimination in the grand-jury selection
process, the denial of the right to self-representation at trial, and the denial of the
right to a public trial. See id. at 309-10. Notably absent from this list of structural
defects is the type of defective indictment at issue in Stirone and Bain.

      Most recently, in Neder v. United States, 527 U.S. 1, 8 (1999), the Supreme
Court again listed the limited class of cases in which it had found an error to be

                                           -6-
structural: the five types of error listed in Fulminante, plus the giving of a defective
instruction on reasonable doubt (a type of error recognized as structural for the first
time in 1993, and hence not included in Fulminante’s 1991 list). Again, the Court
made no reference to the type of defective indictment at issue in Stirone and Bain.

       We tend to think that the Supreme Court meant for its lists of structural errors
in Fulminante and Neder to be exhaustive. But even if we are wrong on that count,
we believe that the holding of Neder has particular significance to the case at bar,
because Neder is in some ways the mirror image of Allen. Neder was charged by
indictment with tax fraud, which has as an element that the false statements made by
the taxpayer be material. Over Neder’s objection, the district court instructed the petit
jury not to consider the materiality of any false statements he made because
materiality was an issue of law for the district court to decide. See id. at 6. Although
the Supreme Court agreed that this deprived Neder of his Sixth Amendment right to
have every element of the charged offense be proven to the petit jury beyond a
reasonable doubt, the Court concluded that the error was not structural and should be
analyzed for harmless error. See id. at 8-15. The Court found the error harmless
beyond a reasonable doubt by “conduct[ing] a thorough examination of the record”
of the evidence presented at trial and concluding that “no jury could reasonably find”
that Neder’s false statements were not material because the record did not “contain[]
evidence that could rationally lead to a contrary finding with respect to the omitted
element” of materiality. See id. at 16-20.

       We find Neder instructive because, just as Neder was deprived of his Sixth
Amendment right to have the petit jury determine an essential element of his offense,
Allen was deprived of his Fifth Amendment right to have the grand jury decide
whether to charge the statutory aggravating factors and the mens rea requirement that
are the functional equivalent of elements of his offense. Given that the Supreme
Court concluded that the Sixth Amendment error was not structural and should be
analyzed for harmless error, we are persuaded that we should approach the Fifth

                                           -7-
Amendment error the same way. We therefore conclude that the defect in Allen’s
indictment was not structural error. See Robinson, 367 F.3d at 285-86; Higgs, 353
F.3d at 304-06; accord United States v. Moss, 252 F.3d 993, 1000-01 & n.8 (8th Cir.
2001) (Apprendi indictment error is not structural), cert. denied, 534 U.S. 1097
(2002). Thus, we proceed to inquire whether the defect in Allen’s indictment was
harmless beyond a reasonable doubt.

                                           III.
                                            A.
       The test for harmless error is straightforward. “Any error, defect, irregularity,
or variance that does not affect substantial rights must be disregarded.” Fed. R. Crim.
P. 52(a). “[B]efore a federal constitutional error can be held harmless, the court must
be able to declare a belief that it was harmless beyond a reasonable doubt.”
Chapman, 386 U.S. at 24. It is the government’s burden to demonstrate that the
defendant was not prejudiced by the error. See id. When the error at issue is the
failure to have a jury make a necessary finding, such as in an Apprendi-affected drug
case, we review the relevant evidence in the record to determine what “any rational
jury” would have done if asked to make the necessary finding. See United States v.
Anderson, 236 F.3d 427, 430 (8th Cir.) (petit jury case), cert. denied, 534 U.S. 956
(2001). The “rational jury” test was the one the Supreme Court employed in Neder.
See 527 U.S. at 18 (petit jury case).

        Our inquiry, then, is whether any rational grand jury–and we presume that
Allen’s grand jury was rational–would have found the existence of the requisite
mental state and one or more of the statutory aggravating factors found by the petit
jury if the grand jury had been asked to do so. We are presented with three possible
ways to conduct that harmless-error inquiry in this case. One approach would be to
limit our review to the evidence presented to the grand jury when it was asked to
indict Allen. Another approach would be to review the entire record, including the
evidence presented to the petit jury at the trial and penalty phase. A third approach

                                          -8-
would be to view the petit jury’s verdict, which unanimously found the existence of
the mens rea requirement and the aggravating factors beyond a reasonable doubt, as
proof that the grand jury in this case would have charged the requisite mental state
and the aggravating factors in the indictment.

      When we are confronted with several possible grounds for deciding a case, any
of which would lead to the same result, we choose the narrowest ground in order to
avoid unnecessary adjudication of constitutional issues. See United States v. Nat’l
Treasury Employees Union, 513 U.S. 454, 478 (1995). In this case, the narrowest
method of conducting harmless-error review is to limit ourselves to the evidence
presented to the grand jury at the time it was asked to indict Allen. Because
application of this method satisfies us beyond a reasonable doubt that the error in this
case was harmless, we express no present opinion on the validity of conducting
harmless-error review with reference to the entire record, cf. United States v. Wright,
248 F.3d 765, 766-67 (8th Cir. 2001), or the validity of using the petit jury’s verdict
on the aggravating factors and the mens rea requirement as proof that the grand jury
would have charged the aggravating factors and the requisite mental state in the
indictment, cf. United States v. Mechanik, 475 U.S. 66, 70 (1986).

                                           B.
      We now explore the possible ways that the Fifth Amendment error in this case
could have prejudiced Allen. The two primary purposes of an indictment are to give
the defendant clear notice of the allegations that he will have to defend himself
against at trial, and to allow the defendant to plead prior prosecution as a bar to future
prosecution. See United States v. Miller, 471 U.S. 130, 134-35 (1985). There is no
dispute that Allen had complete and timely notice of the allegations against him,
through the combination of the indictment and the notice of intent to seek the death
penalty, and that his defense during both the guilt and penalty phases was in no way
prejudiced. Nor is there any dispute that the indictment was sufficiently clear to
allow Allen to use it as a bar to being prosecuted again for the same conduct.

                                           -9-
       The two primary purposes of the grand jury are, first, to make “the
determination whether there is probable cause to believe a crime has been committed”
and, second, “the protection of citizens against unfounded criminal prosecutions.”
See United States v. Calandra, 414 U.S. 338, 343 (1974). We discuss at length below
the grand jury’s probable-cause function, and we deal first with its role of protecting
citizens against unfounded prosecutions. In this capacity, the grand jury “has been
regarded as a primary security to the innocent against hasty, malicious[,] and
oppressive persecution; it serves the invaluable function in our society of standing
between the accuser and the accused, whether the latter be an individual, minority
group, or other, to determine whether a charge is founded upon reason or was dictated
by an intimidating power or by malice and personal ill will.” See Wood v. Georgia,
370 U.S. 375, 390 (1962). There is not the slightest suggestion in this case that the
government engaged in the hasty, malicious, or oppressive persecution of an innocent
man. There is likewise no allegation that the prosecution was unreasoned, or that the
government singled Allen out for prosecution because of personal ill will toward him,
racial animus, or any other discriminatory reason.

                                         C.
        We now turn to the grand jury’s responsibility to determine probable cause.
We ask whether any rational grand jury, including Allen’s grand jury, would have
found probable cause to charge at least one of the statutory aggravating factors and
the mens rea requirement found by the petit jury if the grand jury had been asked to
do so. As explained above, we limit our review to the evidence presented to Allen’s
grand jury. One of the two statutory aggravating factors that the petit jury found in
imposing the death sentence was that Allen, “in the commission of the offense, or in
escaping apprehension . . ., knowingly create[d] a grave risk of death to one or more
persons in addition to Richard Heflin.” The following grand jury testimony
demonstrates that the grand jury would have charged that statutory aggravating factor
if it had been asked to do so.



                                         -10-
        Lisa Moore, a bank teller, told the grand jury that she was pregnant at the time
the robbery occurred. That day, she was working at the bank along with three other
tellers and Heflin. There was one customer present, Michael West, who also worked
as the bank’s maintenance man. The first robber appeared in the bank, fired three
shots in Heflin’s direction, and shouted, “Everybody get the f*** down.” When Mr.
West turned to run, the robber raised his assault rifle and fired three shots at Mr.
West, but missed. Mrs. Moore then complied with the robber’s demand by lying
face-down in the teller area. When the robber entered the teller area by vaulting over
the gate that separated it from the lobby, she looked up at him. He pointed his gun
at her head and said, “B****, I said, get the f*** down.” He then fired a shot into the
wall. While the robber took money from the teller area, Mrs. Moore could hear the
second robber firing shots in the lobby and shouting instructions to the first robber.
When the first robber left the teller area, she again looked up at him, and he said,
“B****, I told you, stay down.” The two robbers then exited the bank. Mrs. Moore
went to the lobby, where she observed that Heflin had been shot. Mrs. Moore
subsequently decided to quit her job at the bank for her safety and the safety of her
unborn child.

       Terry Gear, a friend of Holder’s, testified before the grand jury that Holder
invited him to be part of the bank robbery. Holder said that he was not going to get
caught because he had an SKS assault rifle that could shoot through “police cars and
vests.” Holder said that he and his associates “weren’t going to let anything stop
them,” and if anyone tried to catch him, “he was going to X them out.” Gear declined
Holder’s invitation to participate in the bank robbery.

        FBI Special Agent Ann Pancoast told the grand jury that she had investigated
the bank robbery. Heflin died of multiple gunshot wounds, some from direct shots
and some from ricochets. Each bank robber had discharged a semiautomatic assault
rifle in the bank. Authorities recovered a total of sixteen spent shell casings and
observed numerous bullet holes in the walls. The two bank robbers fled in a van that

                                          -11-
they had doused with gasoline. The van crashed in Forest Park and became totally
engulfed by flames. Bystanders in the park heard explosions inside the van, later
determined to be ammunition cooking off.

       This grand jury testimony persuades us beyond a reasonable doubt that, if the
grand jury had been asked to charge the grave-risk-of-death-to-others statutory
aggravating factor, it would have done so. The government would have needed to
persuade only a simple majority of the twenty-three-member grand jury to find
probable cause. See Fed. R. Crim. P. 6(f) (twelve-juror-majority requirement); United
States v. Conley, 186 F.3d 7, 16 n.4 (1st Cir. 1999) (probable cause requirement),
cert. denied, 529 U.S. 1017 (2000). The grand jury testimony reviewed above
showed that (1) both bank robbers fired multiple shots from semiautomatic assault
rifles while they were in the bank, for a combined total of sixteen shots; (2) one bank
robber pointed his gun at Moore’s head and fired a shot into the nearby wall to
intimidate her into following his instructions; (3) one bank robber fired three shots
at West when West turned to run; (4) multiple shots ricocheted through the lobby; (5)
when planning the robbery, Holder had indicated that he would kill anyone who tried
to prevent him from robbing the bank or tried to catch him; and (6) in fleeing the
scene of the crime, the two bank robbers crashed a flaming gasoline-saturated van
which contained exploding ammunition into St. Louis’s largest park on St. Patrick’s
Day.

        We therefore conclude that any rational grand jury, including Allen’s grand
jury, would have found probable cause to charge that Allen knowingly created a
grave risk of death to persons other than Heflin while committing the bank robbery
or in escaping apprehension. The failure to charge this statutory aggravating factor
in the indictment was therefore harmless error.3 See United States v. Davis, 380 F.3d


      3
        We note that the government’s failure to charge any statutory aggravating
factors or the mens rea requirement in the indictment was not the product of malice
                                         -12-
821, 829-30 (5th Cir. 2004); Robinson, 367 F.3d at 286-89; Higgs, 353 F.3d at 306-
07.

       We reach the same conclusion about the mens rea requirement. As noted
above, the requisite mental state found by the petit jury in sentencing Allen to death
was that he “intentionally inflicted serious bodily injury which resulted in the death
of Richard Heflin.” The FDPA provides four ways to prove the requisite mental state,
and the one employed here did not require the government to prove that Allen
intentionally killed Heflin, only that he intentionally inflicted serious bodily injury
that resulted in Heflin’s death. Compare 18 U.S.C. § 3591(a)(2)(A) with 18 U.S.C.
§ 3591(a)(2)(B). It is well established that criminal intent, including the intent to
cause serious bodily injury, may be inferred from circumstantial evidence. See
United States v. Waldman, 310 F.3d 1074, 1077-78 (8th Cir. 2002).

        Mrs. Moore testified before the grand jury that she thought she recognized the
voice or speech mannerisms of the second robber–the one who she testified had
remained in the lobby while the first robber collected the money from the teller area,
who had shouted instructions to the first robber, and whom she did not see–as being
Holder’s. She had heard Holder’s voice many times before because he came into the
bank once a month, every month, to make a $500 withdrawal from his account.
Holder preferred to have Mrs. Moore wait on him, and records showed that she had
done so in eight of the past twelve months, including when he made a withdrawal
four days before the bank robbery. This left the grand jury logically to infer that the
first robber–the one who had fired three shots in Heflin’s direction–was Allen.



toward Allen or defiance of the law. Rather, the government was complying with the
law as it then existed: Walton remained good law and Ring was years away.
Likewise, after Ring was decided, the Department of Justice brought itself into
compliance with the changed legal landscape by adopting a policy of including these
factors in indictments in FDPA prosecutions. See Robinson, 367 F.3d at 284 n.6.
                                         -13-
       Agent Pancoast told the grand jury that two of the bullets found in Heflin’s
body had been fired from the Chinese-manufactured assault rifle used by one of the
robbers. Clips of ammunition for the Chinese-manufactured assault rifle were found
in the pocket of a black leather coat that was discarded along the route that Allen took
through Forest Park in fleeing from the burning van. Agent Pancoast also testified
before the grand jury that Allen and Holder each gave statements to the police about
the crime after they were arrested, and each identified Allen as the one who entered
the bank first and shot Heflin. Heflin died at the hospital from the gunshot wounds
he suffered during the robbery, Agent Pancoast told the grand jury.

        We therefore conclude that any rational grand jury, including Allen’s grand
jury, would have found probable cause to charge Allen with the requisite mental state,
i.e., that he intentionally inflicted serious bodily injury that resulted in Heflin’s death.

                                         D.
      Given our confidence beyond a reasonable doubt in the way a rational grand
jury would have acted based on the evidence presented, the only conceivable benefit
Allen was deprived of was a chance at grand jury nullification. However, we have
previously held that the possibility of jury nullification “does not transform a
harmless error into a prejudicial one.” United States v. Horsman, 114 F.3d 822, 829
(8th Cir. 1997), cert. denied, 522 U.S. 1053 (1998). “Accordingly, where the only
possible deprivation suffered by the defendant is the possibility of jury nullification,
the defendant’s substantial rights have not been violated.” Id. (citation and internal
marks omitted). Moreover, we see no realistic possibility that Allen’s grand jury
would have declined to charge a statutory aggravating factor or the mens rea
requirement in order to avoid exposing Allen to the death penalty. The grand jury
was told that Allen would be eligible to receive the death penalty if he was indicted
for the crimes alleged when the Assistant United States Attorney read 18 U.S.C.
§§ 924 and 2113, including their penalty provisions, to the grand jury immediately
before it began its deliberations.

                                            -14-
                                           IV.
       Finally, we turn to Allen’s constitutional challenge to the FDPA. He argues
that the Act is unconstitutional after Ring because it directs the government to charge
aggravating factors and the requisite mental state in a notice of intent to seek the
death penalty rather than in an indictment. We disagree. While it is true that the
FDPA directs the government to charge these factors in a notice of intent to seek the
death penalty, nothing in the Act precludes the government from also submitting them
to the grand jury for inclusion in the indictment. This is the practice that the
Department of Justice has adopted after Ring, and it preserves the constitutionality
of FDPA prosecutions. See United States v. Barnette, 390 F.3d 775, 788-90 (4th Cir.
2004); Robinson, 367 F.3d at 290.

                                          V.
       In sum, we conclude that although the Fifth Amendment requires that at least
one statutory aggravating factor and the requisite mental state be found by the grand
jury and charged in the indictment in FDPA prosecutions, the failure to do so in this
pre-Ring case was harmless beyond a reasonable doubt; and we conclude that Ring
did not render the FDPA unconstitutional. Having complied with the Supreme
Court’s instructions that we give Allen’s case further consideration in light of Ring,
we affirm the judgment of the district court for the reasons stated above.
                       ______________________________




                                         -15-
