dissenting in part and concurring in part:
I respectfully dissent from the majority’s decision to reverse the judgment of acquittal entered by the district court. For a kidnapping to occur, the perpetrator must hold his victim for an appreciable period of time. Here, the jury could only guess that Jay Lentz (Lentz) held Doris Lentz (Doris) prior to her death: there is no direct evidence of a holding, nor is there any evidence from which a holding can be reasonably inferred. In short, the government did not prove a kidnapping. Because reversal of the judgment of acquittal means that the case against Lentz remains open, I concur in parts III, IV, and V of the majority’s opinion, which, among other things, vacate the district court’s misconduct findings against the government, affirm the grant of a new trial, and deal with procedures on remand. My reasons for dissenting from part II.C of the majority opinion follow.
I.
Lentz was indicted for kidnapping that resulted in the victim’s death, in violation of the Federal Kidnapping Act, 18 U.S.C. § 1201(a). To convict Lentz, the government had to prove: (1) that he willfully caused Doris to be transported in interstate commerce; (2) that he unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried her away; (3) that he held Doris for ransom or reward or otherwise; and (4) that her death resulted. Ante at 199-200. The government’s theory at trial was that Lentz devised an intricate scheme to lure Doris into driving from Virginia to his house in Maryland, and at some point after she arrived, he killed her. Ante at 195-99. The government, however, did not attempt to prove when, where, or how Lentz killed Doris, nor did it offer any evidence or theory about what Lentz did between the time Doris arrived at his house and the time of her death. The government simply failed to prove the holding element of kidnapping.
At the close of the government’s case, Lentz made a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, asserting that the evidence was insufficient to sustain a conviction because the government did not prove the holding element. According to Lentz, the jury could do nothing “other than speculate that Ms. Lentz was ever held.” J.A. 1603. When the district court turned to the government for a response, the following exchange occurred:
THE COURT: Tell me what the detention is in this case.
[AN AUSA]: The detention began, Your Honor, when [Doris] was inveigled. She was being held when she started to be inveigled over to [Lentz’s] house. And when she got to his house, he had to hold her to kill her.
Somehow or other, he detained her there and he killed her.
THE COURT: What evidence do you have of any of that?
[AN AUSA]: That [Doris] was ultimately killed. And that [Lentz] had to hold her to detain her to ultimately kill her....
J.A. 1614-15. The district court requested briefing on the holding issue and permitted the trial to proceed. Then, at the close of all the evidence, Lentz renewed his Rule 29 motion, asserting that the government had still not introduced any evidence that Doris was held prior to her death. The district court again took the motion under *224advisement, this time stating that it would allow the case to proceed to verdict in order to “preserv[e] the government’s right to appeal in the event a guilty verdict is returned but then is set aside by the granting of a judgment of acquittal.” J.A. 2351.
The government’s closing argument to the jury is telling for its failure to point to any evidence that satisfies the holding element of kidnapping. The lead AUSA said to the jury, “Ladies and gentlemen, we don’t know exactly what happened to Doris Lentz when she got to the defendant’s house on April the 23rd. But we know that she ended up dead.” J.A.1940. The AUSA also reminded the jury that “[t]his is not a murder case. And we’re not required to prove the cause and manner of death, how it happened, where it happened. We don’t have to prove that. [We] can’t do it in this case.... ” J.A. 1949. The AUSA then attempted to summarize the evidence tending to prove each of the four elements necessary to convict Lentz of federal kidnapping. The transcript of the closing argument shows that the government spent twenty-three pages (J.A.1950-74) summarizing the evidence that showed Lentz had inveigled Doris into traveling to his house, twelve pages (J.A. 1976-87) summarizing the evidence that showed Doris died as a result of that trip, and two pages (J.A.1974-76) summarizing the evidence that showed Doris had to travel across a state boundary to reach Lentz’s house. In contrast, the government’s discussion of the holding element was limited to three lines. Specifically, the AUSA said, “Next element, held for his purpose. This one is very straightforward], All you have to do is find that he held her long enough to kill her.” J.A. 1976. This argument on holding highlights the fundamental failing in the government’s case. It is wrong as a matter of law because the holding in a kidnapping must be for an appreciable period. What is more important, the AUSA did not direct the jury to any evidence that would support a finding that Doris was held. The jury nevertheless returned a guilty verdict. Shortly thereafter, the district court granted Lentz’s Rule 29 motion because “the holding element of kidnaping was not proved.” J.A. 2387. The government appeals that decision.
II.
In reviewing a judgment of acquittal, we “view the evidence in the light most favorable to the prosecution and inquire whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt.” United States v. Wilson, 118 F.3d 228, 234 (4th Cir.1997) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Lentz does not contest that the government proved three of the four elements of kidnapping, specifically (1) that he inveigled Doris (2) into traveling across state lines and (3) that her death resulted. Proof of the element that must precede the death — a holding — is contested. Therefore, the narrow question raised by the government’s appeal is whether the evidence would allow any rational trier of fact to conclude beyond a reasonable doubt that Lentz held Doris prior to her death. In answering this question, we must keep in mind that:
The very existence of the Jackson test presupposes that juries accurately charged on the elements of a crime and on the strict burden of persuasion to which they must hold the prosecution, nevertheless may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt. The test was adopted to provide an additional safeguard against that possibility, and was to give *225added assurance that guilt should never be found except on a rationally supportable state of near certitude.
Evans-Smith v. Taylor, 19 F.3d 899, 905-06 (4th Cir.1994) (internal quotation marks and citations omitted).
To satisfy the holding element of the Federal Kidnapping Act, the government was required to prove that Lentz imposed “an unlawful physical or mental restraint for an appreciable period against [Doris’s] will and with a willful intent so to confine [her].” Chatwin v. United States, 326 U.S. 455, 460, 66 S.Ct. 233, 90 L.Ed. 198 (1946). Throughout this case the government has argued that the evidence satisfies the holding element for either of two reasons. First, the government argues that Doris was held “by deception from the time she was inveigled or deceived into traveling from Virginia to Maryland through the time that she came into Lentz’s presence.” Ante at 201-02; see also Appellant’s Br. at 52. Second, the government argues that “murder is the ultimate holding,” Appellant’s Br. at 58, and therefore “the evidence that [Lentz] murdered [Doris], by whatever means, is sufficient to establish a holding by physical restraint.” Id. at 62. In other words, the government argues that the holding element has been implicitly satisfied because, as Lentz concedes, the evidence was sufficient to show (1) that Doris drove to Lentz’s house and (2) that Doris died as a result of her visit there. Again, according to the government, either of these events constitutes a holding.
The majority does not rely on either of the government’s theories of holding. Instead, it concludes that “the circumstantial evidence in the case supports the jury’s finding that Lentz himself ... [held Doris] against her will separate and apart from her trip to the house.” Ante at 203. Specifically, the majority says that a jury could reasonably conclude that once Doris arrived at Lentz’s house, he brought her inside and held her there for an appreciable amount of time before her death. Ante at 202-03. In support of this conclusion, the majority cites six pieces of evidence: (1) Lentz told his daughter’s babysitter, Marilyn Sauder, that Doris had come to his house on the evening of April 23, 1996; (2) Lentz stopped his mail delivery beginning the morning of April 24, 1996; (3) Lentz left a voice message with his real estate agent on April 22, 1996, asking that the lock box at his house be removed so that he could do some interior painting without being, disturbed by visitors; .(4) Lentz’s realtor saw a blue tarp in his foyer on the morning of April 23, 1996; the tarp was gone when the realtor returned on April 28, 1996, but no painting had been done; (5) Doris’s car contained blood stains from Lentz and Doris that were not present as of April 22, 1996; (6) over a month after Doris disappeared, her mother, Bernice Butt, noticed that Lentz had removed a sofa .from his living room. Id. at 202. The majority believes that this circumstantial evidence provided “a logical and supporting evidentiary basis for the jury to conclude that Doris was ‘held’ by Lentz after she arrived at his house but before the fatal wounds were inflicted.” Ante at 203. I respectfully disagree.
As the majority acknowledges, the government did not introduce any direct evidence that Doris was held. Ante at 203. Therefore, the majority’s theory is correct only if the six pieces of circumstantial evidence listed above allow the reasonable inference that Doris was held. It goes without saying that “inferences from facts which have been [proven] by circumstantial evidence may be sufficient to sustain a verdict of guilt.” United States v. Thomas, 453 F.2d 141, 143 (9th Cir.1971); see also Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Stamper v. Muncie, 944 F.2d 170, *226174 (4th Cir.1991). And we must “accord[ ] the benefit of all reasonable inferences to the government.” Evans-Smith, 19 F.3d at 905. However, “an inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir.1982) (internal quotation marks and citations omitted); see also Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943); United States v. Galbraith, 20 F.3d 1054, 1057 (10th Cir.1994); Evans-Smith, 19 F.3d at 908 n. 22 (“While all inferences must be made in favor of the prosecution, leaps of logic should not be.”); Thomas, 453 F.2d at 143.
When the evidence in this case is reviewed in light of these principles, it becomes clear that a jury could not rationally infer beyond a reasonable doubt that Doris was held for an appreciable period. Drawing such an inference would necessarily require an impermissible degree of speculation and conjecture. At the most, the evidence cited by the majority demonstrates that: (1) Lentz devised a scheme to lure Doris to travel to his house on April 23, 1996, and he intended to cause her harm when she arrived; (2) Lentz took steps to insure that nobody would be around when Doris arrived; (3) Doris did arrive at Lentz’s house on April 23, 1996; (4) after Doris arrived, some harm befell her that led to her death; and (5) Lentz transported Doris’s body in her car. Although these permissible findings (almost all requiring inferences) strongly suggest that Lentz was involved in Doris’s disappearance and was ultimately responsible for her death, none permit the further inference that Doris was held for an appreciable period of time before her death.
The majority’s analysis simply assumes a jury could infer that Doris was confined and killed in Lentz’s house based on the facts that she arrived at his house, that Lentz did not want people around when she arrived, and that Doris subsequently died. While these facts are consistent with the theory that Doris was confined in Lentz’s house prior to her death, that is only one possibility. Lentz could have killed Doris in any number of ways that did not involve a holding. For example, Lentz could have taken Doris’s life the moment she walked into his house. Or he could have inflicted a deadly wound from a concealed position before she had a chance to enter the house. Indeed, it might have been advantageous for Lentz to kill Doris immediately upon her arrival in order to minimize the risk that she would put up a struggle or scream for help. Of course, if Lentz killed Doris as soon as she arrived, he did not hold her for the appreciable period necessary for a federal kidnapping. See Chatwin, 326 U.S. at 460, 66 S.Ct. 233 (concluding that the holding element “necessarily implies an unlawful physical or mental restraint for an appreciable period") (emphasis added); see also United States v. Etsitty, 130 F.3d 420, 429 (9th Cir.1997) (Kleinfeld, J., concurring) (“[I]f [the holding] was not for an appreciable period, then treating the seizure and confinement of the victim as kidnapping would exceed the scope of the statute.”); United States v. Howard, 918 F.2d 1529, 1536 (11th Cir.1991) (overturning kidnapping conviction when “[t]here [wa]s no evidence in the record that appellants intended to detain [the victim] ... beyond the few seconds it would take to [rob him]”); Gov’t of Virgin Islands v. Berry, 604 F.2d 221, 227-28 (3d Cir.1979) (overturning kidnapping conviction when “the degree of confinement to which [the victim] was subjected was no greater than that which is inherent in the commission of [assault]”).
*227At trial the government tried to downplay the possibility of an immediate killing by saying, “[t]here’s no evidence of that. There’s no evidence that neighbors heard a gunshot. She clearly was inside that house [when she was killed].... This was a quiet crime that no one heard.” J.A. 1616. But Lentz did not have to prove that Doris’s death was immediate; rather it was the government’s burden to prove beyond a reasonable doubt that Doris was not killed immediately. All of the evidence cited by the majority, including the presence of the tarp, Lentz’s plans to keep people away from the house, the blood in Doris’s car, and even the missing couch, suggest that Lentz was planning to, and did in fact, dispose of Doris’s body on the night of April 23, but this evidence does not show what happened to Doris immediately before she died. The AUSA unwittingly put his finger on the problem when he said in closing, “we don’t know exactly what happened to Doris Lentz when she got to the defendant’s house on April the 23rd. But we know that she ended up dead.” J.A.1940. A jury might conclude, based on intuition, that because Doris arrived at Lentz’s house, she went inside and was held for some amount of time before being killed. But “intuition cannot substitute for admissible evidence when a defendant is on trial,” United States v. Hamblin, 911 F.2d 551, 558 (11th Cir.1990), and the government failed to produce any evidence that demonstrated beyond a reasonable doubt that Lentz held Doris before she died.
The majority might have a stronger argument if the evidence showed that Lentz actually brought Doris into his house or that she was murdered inside. Contrary to what the majority says, see ante at 202, however, the record does not establish that either of these events occurred. The majority, for éxample, relies on testimony indicating that Lentz removed a sofa from his living room at some point. The witness who gave this testimony never said when she had last seen the sofa in Lentz’s house, so the sofa could have been removed before Doris disappeared. Even if the sofa was removed after the evening of April 23, 1996, a jury could not reasonably infer from the disappearance of a piece of furniture that Doris entered Lentz’s house, was confined there, and was then murdered. This inference would be particularly speculative in light of the fact that investigators never found any physical evidence linking Doris to the interior of Lentz’s house. See Evans-Smith, 19 F.3d at 909-10 n. 29 (“Favoring the prosecution with all inferences does not mean that we must ignore evidence that is in the record, but which they ignore.”).
The majority also argues that the holding element was satisfied because the evidence showed that “[f|rom the moment Doris pulled up at Lentz’s home ... Lentz was then in a position to confine her physically if necessary.” Ante at 202. To support this argument, the majority cites United States v. Higgs, 353 F.3d 281, 313 (4th Cir.2003). The defendant in Higgs tricked three.young women into entering his van by offering them a ride home. The defendant then drove to a secluded spot and shot all three. Our court reasoned that the holding element had been satisfied because once the victims had entered the van, the defendant “confin[ed] [them] ... under the pretense of taking them home,” and he was further “prepared to confine them at gunpoint if necessary.” Id. at 313. Higgs merely stands for the proposition that a holding can occur when the perpetrator is confining his victim through deception, while holding force in reserve. The case does not alter the definition of a holding, which requires an actual “physical or mental restraint for an appreciable period,” Chatwin, 326 U.S. at 460, 66 S.Ct. 233, *228not simply a willingness to restrain should it become necessary. In this case, as I have pointed out, there is no evidence that Doris was confined, by deception or otherwise, after she arrived at Lentz’s house. Nor is there any evidence that Lentz was in Doris’s company any longer than was necessary to kill her. Accordingly, Higgs does not strengthen the majority’s argument.
From the very beginning of this case the government has had trouble articulating how a jury could reasonably infer that Lentz held Doris for an appreciable period after she arrived at his house but before she died. The government’s only argument on this score has been that “somehow or other [Lentz] detained [Doris at his home] and he killed her.... [Lentz] had to hold her to detain her to ultimately kill her.” J.A. 1614-15. However, as our court has said before, “to start with the assumption that the crime was committed and then to show that each piece of circumstantial evidence can be explained in a consistent manner is fundamentally different from examining each piece of evidence and finally concluding beyond a reasonable doubt that the defendant [is] guilty [of each element of the crime].” Evans-Smith, 19 F.3d at 910. The majority has demonstrated that the evidence is not inconsistent with the theory that Doris was confined or held before she died. What it has failed to do, however, is explain how each piece of evidence could build to the fair or rational inference that Lentz held Doris after she arrived at his house but before she was killed. This is not a case in which there is conflicting evidence on whether a holding occurred. Rather, this is a case in which there is no evidence that tells us what happened as far as the holding issue is concerned. See Twin Oaks Nursing Home, 692 F.2d at 1328. And the mere possibility that Doris was held prior to her death is too speculative to be the basis for a jury verdict of guilt.
I would affirm the district court’s determination that “the government simply did not provide evidence supporting a finding that Ms. Lentz was held in connection to her alleged murder.” J.A. 2384. Doris Lentz’s disappearance and (almost certain) death present a dreadful case that needs to be solved. The Federal Kidnapping Act does not offer a solution, however, because there is no evidence of a holding.