United States v. Lentz

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 06-4691
JAY E. LENTZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, Senior District Judge.
(1:01-cr-00150-TSE)

Argued: January 30, 2008

Decided: May 12, 2008

Before MICHAEL, TRAXLER, and KING, Circuit Judges.

Affirmed by published opinion. Judge Traxler wrote the opinion, in
which Judge Michael and Judge King joined.

COUNSEL

ARGUED: Meghan Suzanne Skelton, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Bal-
timore, Maryland, for Appellant. Erik Russell Barnett, Assistant
United States Attorney, David Brian Goodhand, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Alex-
andria, Virginia, Amy L. Austin, OFFICE OF THE FEDERAL PUB-
2 UNITED STATES v. LENTZ
LIC DEFENDER, Richmond, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Patricia M. Haynes, Assistant
United States Attorney, Eric J. Heimann, Special Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.

OPINION

TRAXLER, Circuit Judge:

Jay Lentz appeals his conviction for interstate kidnapping resulting
in the death of his ex-wife, Doris Lentz, in violation of the Federal
Kidnapping Act, 18 U.S.C.A. § 1201(a) (West 2000 & Supp. 2007).
For the following reasons, we affirm.

I.

Viewed in the light most favorable to the government, the evidence
adduced at trial established the following. Jay Lentz and Doris Lentz
were married in 1989, and their only daughter, Julia, was born in
1991. By all accounts, the marriage was acrimonious and the couple
separated in 1993. Lentz continued to live in the marital home in Fort
Washington, Maryland. Doris moved into a secured apartment build-
ing in Arlington, Virginia, where she asked the apartment manager to
lock the pass key to her apartment in a safe to keep it away from
Lentz and paid extra to be able to park underground.

The Lentz divorce was finalized in 1995, but disputes over the divi-
sion of marital assets as well as the custody and support of Julia
remained unresolved. In February 1996, Doris testified at a contempt
proceeding that Lentz had been abusive and threatening to her, both
verbally and physically. Doris had also told friends and acquaintances
that Lentz had physically abused her in the past, that she was afraid
he would try to kill her, and that he had recently threatened her in per-
son and by telephone. Friends had also observed bruises on Doris in
the past, as did a Prince George’s County Police officer responding
to a domestic assault call at the Lentz home in August 1991.
 UNITED STATES v. LENTZ 3
In March 1996, the family court ordered garnishment of Lentz’s
wages to meet his child support obligations. According to Lentz’s
coworkers, Lentz was angry when his office manager told him that
the garnishment order would be immediately processed. Lentz also
told two of his coworkers that he would kill Doris before he would
let her have custody of Julia. In addition to child support obligations,
Lentz was also ordered to pay Doris approximately $30,000, as well
as half of the proceeds from the anticipated sale of the marital home
and several thousand dollars in attorney fees. A follow-up hearing
regarding these and other issues was scheduled for April 24, 1996.

The story of Doris’s kidnapping and death begins approximately
one week prior to this scheduled hearing. On Tuesday, April 16,
Lentz arrived at Doris’s apartment in Virginia to pick up Julia for a
week-long visit with his parents in Indiana. Unbeknownst to Lentz,
Doris had arranged for her friend Jennifer Rigger to secretly observe
the exchange in the apartment building lobby. Ms. Rigger overheard
Lentz tell Doris that Julia would be returning from Indiana on the fol-
lowing Tuesday, April 23. The original plan was for Lentz to take
Julia to her day care in Arlington on Wednesday morning, where
Doris would pick her up.

On Saturday, April 20, however, Lentz left a recorded telephone
message asking Doris to pick up Julia on Tuesday night, April 23,
between 7:30 p.m. and 8:00 p.m., at his home in Maryland. Lentz also
volunteered to help Doris pay a babysitter on Wednesday if needed
— a stark contrast to the threatening messages left by Lentz regarding
financial matters on prior occasions. Doris, in turn, told several peo-
ple that she was to pick up Julia on April 23, although she was sur-
prised to have learned that Lentz had not accompanied Julia on the
trip to Indiana.

On Monday, April 22, Lentz contacted his real estate agent, Ms.
Diane Ives, and asked her to remove the lockbox key from the front
door of his home because he was planning to do some interior paint-
ing. Ms. Ives arrived at the Lentz home the following morning, April
23, and removed the lockbox key as requested. She also changed the
computer listing to alert other agents that the home was unavailable
to be shown until Saturday. While at the home, Ms. Ives noticed a
4 UNITED STATES v. LENTZ
blue tarp in the foyer of the home, but no painting supplies. Lentz also
arranged to temporarily stop mail delivery at the home as of April 24.

At 3:47 p.m. on the afternoon of April 23, Lentz left another
recorded telephone message for Doris, telling her that he was "back
now." At 6:15 p.m., Jennifer Rigger called Doris at her home and they
talked for about 40 minutes. At 6:55 p.m., Doris told Ms. Rigger that
she had to leave to pick up Julia at Lentz’s home by 7:30 p.m. so
Lentz would not be angry. Doris was never seen or heard from again.

Telephone records reveal that two three-minute telephone calls
were placed from the home of Lentz’s mother in Indiana to Lentz’s
home in Maryland at 10:09 p.m. and 10:51 p.m. on the evening of
April 23. A third six-minute call was placed from Lentz’s home to his
mother’s home a few minutes after midnight. At 6:14 a.m. the follow-
ing morning, Lentz left a recorded message on Doris’s telephone, stat-
ing that he had spoken with his mother in Indiana and that Julia’s
flight would be rescheduled "again" from Saturday to Thursday night.
However, when the message was left, Lentz and Doris were sched-
uled to attend the family court status hearing only hours later to dis-
cuss the ongoing issues of support and custody. The following
morning, Doris did not appear at the April 24 hearing and Lentz
returned home. A telephone call was placed to his home from his
mother’s home that morning that lasted approximately twelve min-
utes. Several hours later, Lentz arrived at his place of employment,
disheveled and with bags under his eyes.

Airline records reveal that Lentz scheduled Julia’s return flight
from Indiana for Saturday, April 27. However, on Wednesday, April
24, Lentz’s mother changed the reservation to reflect a return date of
Thursday, April 25. No reservation was ever made for a return flight
on Tuesday, April 23, as Lentz had represented to Doris both in per-
son and by telephone.

Doris was reported missing by her employer on April 25. When
interviewed by police officers on April 25 and 26, Lentz said that he
last saw Doris on April 16 when he picked up Julia for the trip to
Indiana, and that he last spoke to Doris on April 23, between 5:00
p.m. and 6:00 p.m., when he told Doris that Julia would be returning
on Thursday evening. However, by this time Lentz had left Doris the
 UNITED STATES v. LENTZ 5
early-morning recorded message on April 24 concerning the pur-
ported "Saturday-to-Thursday" change in Julia’s flight. The govern-
ment would later argue that this was an important misstep on Lentz’s
part; the message would have been unnecessary had Lentz already
related this schedule change to Doris on Tuesday evening, as he
claimed to the authorities, as well as unnecessary if he expected to see
Doris a few hours later at the scheduled hearing.

On Sunday, April 28, just before midnight, Lentz left a voice mail
message with the police claiming that, upon further reflection, he real-
ized that he had last spoken with Doris at 6:50 p.m. on April 23. In
the interim, a "Missing" poster distributed in Lentz’s neighborhood
and various news broadcasts had publicized that Doris was last heard
from around 7:00 p.m. on April 23, as related by Ms. Rigger.1

On Saturday, April 27, the real estate agent, Ms. Ives, stopped by
the Lentz home and noticed that a 1 foot x 3 foot portion of the car-
port pavement had been freshly painted, but that no interior painting
had been done. She also observed that a piece of wallpaper had been
torn from the wall facing into the living room, approximately 8-10
feet inside the home.

On Sunday, April 28, Doris’s car was found in a parking lot in a
high-crime area of Washington, D.C., approximately eight miles from
the Lentz home and on the normal route taken by Doris between her
apartment and his home. The woman who reported the abandoned car
told officers that she first saw it on April 24. The doors were
unlocked, the keys were on the floor, and Doris’s purse was on the
console in plain view, containing her driver’s license, credit cards,
$2.91, and a $400.00 check payable to Doris. The driver’s seat had
been pushed back as far as possible to accommodate a tall driver such
as Lentz, who is six feet tall. Doris was just over five feet tall. The
interior of the vehicle was dirty and there was mud in the trunk. The
passenger seat and carpet were stained with Doris’s blood, but there
1
The poster contained a photograph of Doris with a physical descrip-
tion and stated that "Doris disappeared around 7 p.m., Tuesday April 23,
1996 after telling a friend that she was going to Ft. Washington, Mary-
land to pick up her daughter." J.A. 109. Those with information were
asked to contact the Arlington County Police Department.
6 UNITED STATES v. LENTZ
was no blood on the driver’s side of the vehicle. Both floor mats and
Julia’s car seat were missing. There was also a small spot of blood
on the passenger seat that matched Lentz’s DNA. According to the
testimony of Doris’s friends, Doris purchased the car after she and
Lentz separated and, because she feared him, would never have let
Lentz inside her car. Adult- and child-size umbrellas were also pres-
ent in the car. A friend of Doris’s who had ridden in the vehicle on
the evening of April 22 testified that Doris’s vehicle was immacu-
lately clean at that time and there were no umbrellas in the vehicle.
There was, however, evidence that it was raining heavily on the eve-
ning of April 23, indicating that Doris was traveling to Lentz’s home
to pick up Julia and took the umbrellas for her and Julia to use.
Doris’s body has never been found, but there is no dispute that she
is dead.

On Monday, April 29, Ms. Ives returned to the Lentz home to
replace the key in the lockbox. When she entered the home, she
noticed that the blue tarp had been removed, but still no interior paint-
ing had been done. The small painted area in the carport, however,
had expanded to more than double the previous size. In the interim,
police officers watching the Lentz home had observed Lentz washing
the pavement of the carport with a garden hose.

Julia’s babysitter, Marilyn Sauder, testified that Lentz called her on
Sunday evening and said that he told Doris that Julia was not return-
ing on April 23 due to a ticketing mix-up and that Doris should not
come, but that she came anyway. In addition, a neighbor of Lentz,
Elizabeth Arneson, testified that she observed Doris’s car in the Lentz
driveway at 4:30 a.m. on a morning during the week that Doris disap-
peared. Although Ms. Arneson could only pinpoint the date as some-
time between April 22 and April 26, she testified that she remembered
seeing the car and thought it strange because Doris always parked on
the driveway, left the car running, and waited for Julia to come out.
According to Ms. Arneson, Doris told her that she did not want to be
in the house alone with Lentz because she did not feel safe.

In the months following Doris’s disappearance, Doris’s mother vis-
ited Julia at Lentz’s home and noticed that the carpet was very clean
or new as compared to her previous visits. For his part, Lentz
obtained a court order suspending his child support payments and the
 UNITED STATES v. LENTZ 7
garnishment order and, upon selling the marital home, moved to Indi-
ana.

Lentz was subsequently indicted by the grand jury for interstate
kidnapping resulting in death of Doris Lentz, in violation of 18
U.S.C.A. § 1201(a). The superseding indictment specifically charged
that:

On or about April 23, 1996, the defendant, JAY E.
LENTZ, did knowingly, and unlawfully seize, confine,
inveigle, decoy, kidnap and abduct and hold Doris Lentz to
stop her from pursuing an ongoing divorce proceeding, and
did willfully transport and cause Doris Lentz to be trans-
ported in interstate commerce, from Arlington County, Vir-
ginia, in the Eastern District of Virginia, to Fort
Washington, Maryland, and the actions of JAY E. LENTZ
resulted in the death of Doris Lentz.

J.A. 78. The case has since had an extended procedural history, both
in the district court and before this court.

The first appeal to us involved an interlocutory appeal from the dis-
trict court’s pretrial decision to exclude hearsay statements made by
Doris to friends and acquaintances about Lentz’s threats to harm her.
See United States v. Lentz, 58 Fed. Appx. 961 (4th Cir. 2003) (unpub-
lished) ("Lentz I"). We affirmed by a split decision and the case pro-
ceeded to trial. See id.

In July 2003, a jury convicted Lentz of the charged offense and
imposed a life sentence. However, the district court found that the
evidence was insufficient to support the jury’s conclusion that Lentz
had held Doris against her will for an appreciable period of time, as
required by the applicable statute, and entered a judgment of acquittal
under Rule 29(a) of the Federal Rules of Criminal Procedure. In the
alternative, the district court granted Lentz a new trial because unad-
mitted, prejudicial information had found its way into the jury room
during deliberations. On appeal, we reversed the judgment of acquit-
tal, finding that the evidence was sufficient to support the holding ele-
ment, but affirmed the grant of a new trial, and remanded for retrial.
See United States v. Lentz, 383 F.3d 191 (4th Cir. 2004) ("Lentz II").
8 UNITED STATES v. LENTZ
In March 2006, the case was retried before a different district
judge. As before, the government’s theory of the case was that Lentz
planned to kill Doris while Julia was visiting his parents in Indiana
in order to avoid his financial obligations to Doris and gain full cus-
tody of Julia. He scheduled Julia’s flight for a return date of Saturday,
April 27th, but told Doris that Julia would be returning on Tuesday,
April 23rd. Doris planned to pick up Julia at the day care after work
on Wednesday, April 24th. However, Lentz later called Doris and
asked her to pick up Julia on the evening of April 23rd. By doing so,
he tricked Doris into traveling from her home in Virginia to his home
in Maryland with the false representation that Julia would be there
waiting to be picked up. Upon her arrival at his home in Maryland,
Lentz then lured Doris inside the home, held her against her will, and
killed her. He wrapped Doris’s bleeding body in the blue tarp, placed
her body in her car, and drove the car to an unknown location where
he disposed of the body. He then abandoned Doris’s car in a high-
crime area of Washington, D.C., with keys and wallet in plain view,
hoping to tempt a passerby to steal the items and, thereby, manipulate
the situation to look as though the person with the car and/or her wal-
let was the murderer and that Doris had been the victim of a carjack-
ing and robbery.

Lentz’s defense centered upon the theory that Doris was not sched-
uled to pick up Julia that night and never arrived in Maryland, but
rather was the victim of a random carjacking and robbery. As support,
the defense relied upon the fact that the police found a letter marked
"hand-delivered" for Lentz inside the front door of Doris’s apartment,
along with items she would normally take to work in the mornings,
arguing that had she intended to go to Lentz’s home that evening she
would have taken the letter and hand-delivered it then. As pointed out
by the government, however, Doris was also scheduled to see Lentz
the following morning at the family court hearing and, given her nor-
mal practice, was not likely to have sought to interact with Lentz at
his home about such matters.

At the conclusion of the retrial, the newly impaneled jury again
convicted Lentz and he was sentenced to life imprisonment. This
appeal followed.
 UNITED STATES v. LENTZ 9
II.

Lentz’s first challenge to his conviction arises from the claim that
a supplemental jury instruction given by the district court in response
to a question received from the jury during its deliberations construc-
tively amended the indictment.

A.

The Fifth Amendment provides that "[n]o person shall be held to
answer for a capital, or otherwise infamous crime, unless on a pre-
sentment or indictment of a Grand Jury . . . ." U.S. Const. Amend. V.
After the indictment is "returned[,] its charges may not be broadened
through amendment except by the grand jury itself." Stirone v. United
States, 361 U.S. 212, 216 (1960). Thus, the "court cannot permit a
defendant to be tried on charges that are not made in the indictment
against him." Id. at 217. If a constructive amendment is found, the
error is fatal and reversible per se. See id. at 219; see also United
States v. Foster, 507 F.3d 233, 242 (4th Cir. 2007).

"A constructive amendment to an indictment occurs when either
the government (usually during its presentation of evidence and/or its
argument), the court (usually through its instructions to the jury), or
both, broadens the possible bases for conviction beyond those pre-
sented to the grand jury." United States v. Floresca, 38 F.3d 706, 710
(4th Cir. 1994) (en banc). Constructive amendments of an indictment
are regarded "as fatal variances because ‘the indictment is altered to
change the elements of the offense charged, such that the defendant
is actually convicted of a crime other than that charged in the indict-
ment.’" Foster, 507 F.3d at 242 (quoting United States v. Randall,
171 F.3d 195, 203 (4th Cir. 1999)). In Stirone, for example, the
Supreme Court held that a constructive amendment had occurred
because the indictment charged the defendant with unlawfully inter-
fering with interstate commerce in violation of the Hobbs Act based
upon the defendant’s interference with sand shipments, but the district
court instructed the jury that it could also convict based upon evi-
dence allowed regarding future interstate steel shipments. See Stirone,
361 U.S. at 219. Thus, the defendant was tried and convicted of a
charge not contained in the indictment and of which there was no
notice.
10 UNITED STATES v. LENTZ
Similarly, in Floresca, we held that a constructive amendment had
occurred where the defendant was charged with violating a specific
subsection of the criminal statute at issue, but the jury was instructed
that it could convict if it found the defendant guilty under a different
subsection of the statute. The court’s instruction "was more than just
a misstatement of the law applicable to the indicted offense; it stated
a distinct, unindicted offense." Floresca, 38 F.3d at 710 (footnote
omitted). And, in Randall, we found a constructive amendment where
the indictment charged that the defendant carried a gun while distrib-
uting illegal drugs, but the jury was instructed that it could convict if
it found that the defendant carried a gun based upon the uncharged
predicate offense of possession with intent to distribute. See Randall,
171 F.3d at 210. Again, the crime of conviction was different from
the crime of indictment.

B.

Here, Lentz was indicted for kidnapping resulting in death, in vio-
lation of § 1201(a), which required the government to prove as essen-
tial elements: (1) that the victim was seized, confined, inveigled,
decoyed, kidnapped, abducted or carried away; (2) that the victim was
held; (3) that the victim was transported interstate; and (4) that death
resulted. See Lentz II, 383 F.3d at 199; see also United States v.
Higgs, 353 F.3d 281, 313 (4th Cir. 2003). With regard to the third ele-
ment, the language of the superceding indictment charged that Lentz
"did willfully transport and cause Doris Lentz to be transported in
interstate commerce, from Arlington County, Virginia . . . to Fort
Washington, Maryland[,]" J.A. 78 (emphasis added), a theory of the
case that the government has steadfastly pursued.

At the conclusion of the evidence, the district court read the charge
as specifically indicted to the jury, including the allegation that Lentz
had transported Doris in interstate commerce from Virginia to Mary-
land. The court also read the text of § 1201(a), and provided a recita-
tion of the elements the government was required to prove beyond a
reasonable doubt to convict. In providing instruction on the element
of "interstate commerce," the district court defined the term as "com-
merce or travel between one state and another state" and advised that
"a person is transported in interstate commerce whenever that person
moves or travels across state lines or moves or travels from one state
 UNITED STATES v. LENTZ 11
to another state." J.A. 2985 (emphasis added). The district court,
however, neglected to inform the jury that the District of Columbia
is considered a state for purposes of such movement "across state
lines".

Lentz’s constructive amendment claim arises from a supplemental
instruction that was given after some confusion arose on the part of
the jury regarding the "interstate commerce" element of the offense.
During its deliberations, the jury returned the following question to
the court:

Does Doris’s car moving from VA to DC constitute the
legal requirements of interstate commerce since the Dis-
t[rict] of Columbia is not a state?"

J.A. 3001 (emphasis added).

Because the District of Columbia is, by statute, considered the
same as a state for purposes of interstate commerce, the district court
proposed to simply answer the question affirmatively. See 18
U.S.C.A. § 10 (West 2000) ("The term ‘interstate commerce’, as used
in [Title 18], includes commerce between one State, Territory, Pos-
session, or the District of Columbia and another State, Territory, Pos-
session, or the District of Columbia."). The defense agreed that the
kidnapping offense does not require proof of a specific route allega-
tion and that the District of Columbia is considered a state for pur-
poses of interstate commerce. However, the defense argued that
because the indictment charged "interstate commerce, from Arlington
County, Virginia . . . to Fort Washington, Maryland," J.A. 78, the
government was required to prove that Lentz willfully caused Doris
to be transported in interstate commerce directly from Virginia to
Maryland, i.e., "across state lines" or "from state to state" specifically.
The defense also argued that the supplemental instruction would con-
structively amend the kidnapping charge because it would allow the
jury to convict Lentz even if it believed that Doris traveled only from
Virginia to the District of Columbia, without ever entering the state
of Maryland.

The government took a more pragmatic view of the question,
pointing out that because the evidence at trial had demonstrated that
12 UNITED STATES v. LENTZ
Doris likely traveled from her home in Virginia to Lentz’s home in
Maryland through the District of Columbia, the jury was simply
unsure of what effect, if any, that route would have "since the Dis-
t[rict] of Columbia is not a state." J.A. 3001. Accordingly, the govern-
ment requested that the district court either answer the question "yes,"
or specifically instruct the jury, in accordance with 18 U.S.C.A. § 10,
that the District of Columbia is considered a state for purposes of
interstate travel.

Having heard the respective arguments, the district court opted to
provide the jury with a supplemental instruction reiterating that the
government must prove interstate commerce and repeating the origi-
nal instructions given with regard to that element, including that
transportation in interstate commerce is satisfied "whenever that per-
son moves or travels across state lines or moves or travels from one
state to another state." J.A. 3024. The court then clarified the defini-
tion of interstate commerce in accordance with the statute, adding
that:

[W]here I said that "commerce" or "interstate commerce"
means commerce or travel between one state or another, I
tell you further now that "interstate commerce" as used here
includes commerce between one state, territory, possession
or the District of Columbia and another state, territory, pos-
session or the District of Columbia.

J.A. 3025. The court further instructed the jury that it should consider
the supplemental instruction "together with all of the other instruc-
tions that I have previously given you," J.A. 3027, and dismissed the
jury for further deliberations.

C.

The key inquiry in this appeal is to determine whether the supple-
mental instruction resulted in the crime of conviction differing from
the crime charged in the indictment. See Foster, 507 F.3d at 242-43.
We are satisfied that it did not.

To the extent Lentz continues to argue that the language of the
indictment required proof of travel directly from Virginia to Mary-
 UNITED STATES v. LENTZ 13
land, by a route that avoided the District of Columbia, we reject such
a narrow reading. See United States v. Brown, 330 F.3d 1073, 1078
(8th Cir. 2003) (finding no variance in indictment charging interstate
kidnapping from Texas to Arkansas because it "reasonably encom-
passed a route passing through Oklahoma" and, "in any event, . . .
fully and fairly apprised" the defendant of the charges against him).
Here, the indictment charged that Doris traveled from Arlington, Vir-
ginia, where her home was located, to Fort Washington, Maryland,
where Lentz’s home was located, but does not allege or require that
the path of travel encompass a direct crossing of the Virgin-
ia/Maryland line.

Lentz’s claim that the indictment was constructively amended
because the supplemental instruction advised the jury that it could
convict if it believed that Doris only traveled from Virginia into the
District of Columbia, where she was abducted, held, and ultimately
killed, is not supported by the language of the supplemental instruc-
tion given. Even if we assume that such an instruction would consti-
tute a constructive amendment, a point we need not decide, the
district court did not instruct the jury that it could convict if it found
that Doris only traveled from Virginia to the District of Columbia or
that the jury need not find that Doris ever traversed the Maryland bor-
der at all. The jury was instructed that the indictment charged travel
from Virginia to Maryland, and that "a person is transported in inter-
state commerce whenever that person moves or travels across state
lines or moves or travels from one state to another state." J.A. 2985
(emphasis added). The supplemental instruction clarified the district
court’s earlier instruction with a more accurate definition of "inter-
state commerce," advising that travel across "state lines" for purposes
of interstate commerce includes travel encompassing the District of
Columbia and eliminating any confusion over whether Doris had to
have moved or traveled directly across a purely state-to-state border.
At no point, however, did the trial court vary the terms of the indict-
ment as read to the jury, change the elements of the kidnapping
offense charged, instruct the jury that it could convict on the kidnap-
ping charge if it found that Doris never arrived in Maryland, or other-
wise instruct the jury that it could convict based upon a set of facts
different from those set forth in the indictment as read. On the con-
trary, the district court instructed the jury that it must consider the
supplemental instruction on interstate commerce in conjunction with
14 UNITED STATES v. LENTZ
those given previously, which would include the reading of the charge
precisely as indicted.

This brings us to Lentz’s actual claim, which is that the supplemen-
tal instruction could have been interpreted by the jury as license to
convict Lentz of kidnapping if the jury believed that Lentz only
tricked Doris into traveling from Virginia into the District of Colum-
bia. However, when the indictment, evidence, instructions, and argu-
ments are viewed in their totality, the belief that the jury would have
interpreted the supplemental instruction in such a fashion is too
implausible a basis upon which to rest a determination of constructive
amendment.

First, Lentz’s argument is grounded in the initial speculation that
the jury had rejected the government’s theory of the kidnapping and
arrived instead at an alternative theory that was unsubstantiated by
evidence, never alluded to in argument, and not mentioned in the
instructions. We find this far-fetched at best. The government’s evi-
dence revealed that Doris left her home immediately after telling a
friend that she was leaving for Lentz’s home in Maryland to pick up
Julia, an intention fully consistent with the recorded messages left by
Lentz on Doris’s telephone and statements Doris had made to others
about her plans. Testimony from Lentz’s realtor, neighbor, and baby-
sitter indicated that Doris arrived at Lentz’s home as planned, and that
she was held and murdered there. The government’s theory and argu-
ment about how the crime occurred has never wavered and there is
nothing in the record upon which the jury could have rested a belief
that Lentz instead tricked Doris into meeting him somewhere in the
District of Columbia, where he abducted, held, and murdered her.

We likewise find no indication from the language of the jury’s
question that it had arrived at such an unsubstantiated version of the
facts. For example, the jury did not inquire as to whether Doris’s car
moving from Virginia to the District of Columbia would alone suffice
to convict of the indicted offense or whether it must find that Doris
arrived at Lentz’s home in order to convict. Rather, the jury inquired
as to whether Doris’s car moving from Virginia to the District of
Columbia would meet "the legal requirements of interstate commerce
since the Dist[rict] of Columbia is not a state." J.A. 3001 (emphasis
added).
 UNITED STATES v. LENTZ 15
We think it far more likely that the jury’s question was born not
from the jury’s decision to pursue an unsubstantiated and unargued
theory of how and where Lentz killed Doris, but rather from the fact
that it had been presented with evidence that Doris’s route of travel
from Virginia to Maryland involved an intervening crossing of the
District of Columbia borders with those states and that the jury was
paying attention to the instruction on interstate commerce, which by
its literal terms, required travel "across state lines" or "from one state
to another state."2 J.A. 2985. Thus, contrary to Lentz’s claim on
appeal, the jury’s question does not indicate that it had concocted a
version of the facts which involved Lentz tricking Doris into traveling
from her home in Virginia to the District of Columbia, where he
abducted and killed her, but rather that it was concerned, given the
prior instruction on "interstate commerce," that Doris’s travel from
Virginia, through the District of Columbia, to Maryland (which was
supported by the evidence) might not meet "the legal requirements of
interstate commerce since the Dist[rict] of Columbia is not a state."
J.A. 3001. The jury was correctly informed by the district court that
Lentz was charged with "willfully transport[ing] and caus[ing] Doris
Lentz to be transported in interstate commerce from Arlington
2
Specifically, an Arlington County police officer who investigated
Doris’s disappearance testified that Lentz mentioned that routes Doris
typically took would place her traveling between the states via the Dis-
trict of Columbia, in crime-ridden areas, which fit nicely with his pre-
meditated plan to make the murder appear to be a random carjacking.
The government, however, did not advocate any specific route of travel
nor argue that Lentz might have tricked Doris into stopping in the Dis-
trict of Columbia, where he abducted and killed her. On the contrary, the
government consistently argued that Lentz tricked Doris into coming to
his home by the representation that Julia was there, held and killed Doris
after she arrived at his home in Maryland, transported her bloodied body
in her vehicle to dispose of her body in an unknown location, and then
abandoned the car in a high crime neighborhood set up in such a fashion
(keys and wallet in plain view and doors unlocked) as to encourage an
unknowing passerby to take the bait and make it look as though Doris
had been carjacked. There was no evidence to support a finding that
Doris only traveled from Virginia to the District of Columbia, and to the
extent Lentz argued this path of travel in conjunction with his "random
crime" theory, the jury obviously rejected the argument as it ultimately
concluded that he kidnapped Doris.
16 UNITED STATES v. LENTZ
County, Virginia . . . to Fort Washington, Maryland," J.A. 78, and that
the District of Columbia may be considered a state when evaluating
interstate travel. The evidence and arguments of the government were
fully consistent with the charge set forth in the indictment. And, while
the district court’s initial definition of "interstate commerce" in con-
junction with the testimony regarding Doris’s normal route to Lentz’s
home through the District of Columbia, lent itself to some confusion
as to whether the "interstate commerce" requirement had been met as
initially defined, the supplemental instruction remedied any such con-
fusion.

To conclude, we fail to see how the district court’s narrow, supple-
mental instruction could have been reasonably interpreted by the jury
as license to convict Lentz based upon a set of facts for which no evi-
dence or argument was offered. And we see no reason to believe that
the jury did not understand the specifics of the indicted offense, or
that it failed to follow the instructions as given. Because we are satis-
fied that the supplemental instruction did not result in the jury con-
victing Lentz "of a crime other than that charged in the indictment,"
Randall, 171 F.3d at 203 (internal quotation marks omitted), Lentz is
not entitled to relief from his conviction on this basis.

III.

Lentz next raises a series of challenges to the district court’s denial
of his pretrial motions to suppress testimony of a fellow inmate about
a murder-for-hire plot pursued by Lentz while he was awaiting retrial
on the kidnapping charge, as well as recorded conversations he had
with his defense counsel about the plot.

A.

The murder-for-hire plot was first brought to the attention of the
district court on May 19, 2005, when the government filed an ex parte
pleading advising that Christopher Jackmon, a former inmate with
Lentz at the Northern Neck Regional Jail (NNRJ), had come forward
and disclosed that Lentz was pursing a plot to kill certain witnesses
and one or both of the prosecutors who had been involved in Lentz’s
first trial. While an independent team of prosecutors and agents were
investigating the allegation, Lentz abruptly cancelled a scheduled
 UNITED STATES v. LENTZ 17
meeting with a government agent who had intended to pose as a hit
man recommended by Jackmon to Lentz. When Jackmon notified the
authorities that this was done immediately after Lentz spoke with his
defense counsel, Frank Salvato, by telephone, the authorities made
arrangements to obtain recordings of the conversations from the
NNRJ, which, for security reasons, routinely records all outgoing tele-
phone calls made by its inmates. In the ex parte filing, the govern-
ment sought to disclose the substance of the recorded telephone
conversations, which included a discussion about the murder-for-hire
plot, to the prosecutors and investigators involved in the kidnapping
prosecution.3 Following a hearing, the district court ruled that the
government must share the motion with the defense and allow them
an opportunity to investigate the matter. Lentz, in turn, filed motions
to suppress all statements and derivative evidence resulting from his
conversations with Jackmon, including the recorded telephone con-
versations he had with Salvato.

The district court thereafter conducted a three-day evidentiary hear-
ing into the matter and issued two separate and comprehensive opin-
ions, granting in part and denying in part Lentz’s motion to suppress
the testimony of Jackmon regarding his conversations with Lentz, see
United States v. Lentz, 419 F. Supp. 2d 794 (E.D. Va. 2005), and
denying Lentz’s motion to suppress the evidence of his telephone
conversations with Salvato, see United States v. Lentz, 419 F. Supp.
2d 820 (E.D. Va. 2005).
3
Given the unusual, but potentially dangerous situation, the govern-
ment established a team of prosecutors and agents, separate from the kid-
napping team, to investigate the murder-for-hire allegations. When
Jackmon told the authorities that Lentz cancelled the "hit man" meeting
immediately after speaking with Salvato, a third team of prosecutors and
agents (the government "taint" team) was assembled to review the tele-
phone recordings and to evaluate whether disclosure of the recordings
would violate Lentz’s Sixth Amendment rights. The "taint" team made
the determination that Lentz was soliciting advice from his attorney to
further his murder-for-hire plot and, therefore, that the calls were not
privileged. The motion was made ex parte to alert the district court of the
status of the matter and requested permission from the court to disclose
the tapes and the transcripts to the kidnapping team and the murder-for-
hire team.
18 UNITED STATES v. LENTZ
B.

The factual findings of the district court pertaining to Lentz’s con-
versations with Jackmon and Salvato about the murder-for-hire plot
are exhaustively set forth in the district court’s published opinions.
For our purposes, an abbreviated version of the most salient points
will suffice.

In November 2004, Jackmon was serving a 245-month sentence
arising out of a drug trafficking and supervised release violation and
had been transferred on a writ by AUSA Jonathan Fahey to the NNRJ
for a debriefing in an unrelated investigation of drug trafficking.
Upon his arrival, Jackmon was assigned to the same housing unit ("C
Pod") of the NNRJ as Lentz, who was awaiting retrial on the kidnap-
ping charges, and the two men struck up a conversation. The district
court found that "Jackmon was not transferred to NNRJ to act as an
agent for the government in connection with the Lentz case. Nor was
Jackmon placed in Lentz’s pod at the government’s behest, direction,
or influence; the proximity of the two was wholly a matter of coinci-
dence." Lentz, 419 F. Supp. 2d at 801. Jackmon was, however, an
experienced jailhouse informant and, given the lengthy sentence he
was facing, he was hopeful that Lentz might volunteer information to
him about the kidnapping charge. His hopes were realized shortly
thereafter.

On November 19, 2004, Jackmon was debriefed in the unrelated
drug trafficking matter and told his lawyer that he had acquired infor-
mation about the Lentz case. Jackmon’s lawyer passed this informa-
tion to AUSA Steve Mellin, who was the prosecutor in the Lentz case
at the time, but it was met with little interest. AUSA Mellin initially
declined to meet with Jackmon, and nothing was said or done to
imply that the government was particularly interested in what Jack-
mon had to say or that the government was interested in Jackmon
obtaining any information from Lentz. Although Jackmon’s counsel
apparently conveyed to Jackmon that he might be rewarded for
obtaining information or creating a conflict for Lentz’s counsel (who
had represented Jackmon in the past), and Jackmon made exaggerated
statements to his family that he would be obtaining information about
the Lentz case for the government, the district court found no evi-
 UNITED STATES v. LENTZ 19
dence that any government agent had encouraged Jackmon to do any
of these things.

Undeterred, Jackmon continued his efforts to obtain a meeting with
AUSA Mellin about Lentz’s case. Jackmon’s efforts were successful,
and he met with AUSA Mellin and FBI Special Agent Bradley Gar-
rett on December 2 and December 16. During the meetings, Jackmon
told the authorities that Lentz had referred to Doris as a "bitch" and
"high-priced whore," had been involved in two altercations with her,
and said he could not control his anger towards her. In addition, Lentz
said that he had made a mistake by forgetting to pull up the car seat
in Doris’s car to adjust it to her shorter height after he drove it on the
night of the murder and by failing to use bleach on the blood in the
car. Jackmon also related that Lentz had lowered his head and turned
red when the Scott Peterson verdict was announced. According to the
district court’s findings:

[Agent] Garrett and AUSA Mellin listened to the informa-
tion Jackmon provided and gave him two instructions. First,
they instructed Jackmon that he should be only a "listening
post." In other words, Jackmon was told that he should not
directly solicit any information from Lentz or ask questions
about Lentz’s case. Yet, if Lentz wished to speak about his
case, without prompting from Jackmon, Jackmon certainly
was free to listen. And Jackmon could report that informa-
tion back to the government, but he was not instructed that
he was under an obligation to do so. The instruction to be
a listening post was repeated two or three times to ensure
that Jackmon understood. Second, Agent Garrett told Jack-
mon that he could "personalize" the conversation. In other
words, he could talk with Lentz about "subjects of common
interest" — e.g., family, children, or the difficulties of being
locked-up — but he could not engage Lentz in any conver-
sations about his case.

Id. at 804-05. The district court further found that "AUSA Mellin
made no promises of leniency to Jackmon in exchange for the infor-
mation tendered" and "[a]ny ‘hope’ Jackmon had of a reduction of his
lengthy sentence in exchange for information he might be able to pro-
vide in the Lentz case was not encouraged by the government and
20 UNITED STATES v. LENTZ
entirely the product of Jackmon’s own optimistic hope." Id. at 805.
Indeed, after the second meeting with Jackmon, AUSA Mellin "had
no intention of calling Jackmon to testify in the Lentz case" and "gave
Jackmon no assurances that he would be used in Lentz’s retrial." Id.

On December 29, 2004, however, the conversations between Lentz
and Jackmon took a serious turn to the alleged plot to kill witnesses
that had testified against Lentz at his first trial and one or more of the
prosecutors involved. According to Jackmon,

Lentz approached him and told him that his trial was being
continued . . . because his attorney, Mr. Salvato, was also
involved in a trial for the murder of a female government
witness that conflicted with the trial schedule originally set
in his case. When Jackmon expressed disapproval of an
attempt to murder a witness, saying the situation was
"f_____ up," Lentz disagreed, saying "this is combat."
Lentz, who mistakenly believed that Jackmon had not yet
been convicted, asked Jackmon if he would pay $10,000 to
have a key witness killed if he could avoid his twenty year
sentence. Jackmon responded that "crackheads" would kill
a witness for as little as $2,000 or $3,000. When Lentz heard
this, he responded, "I wish I had known that a few years
back."

Id. at 808-09. Lentz expressed a specific interest in killing Julia’s
babysitter, Marilyn Sauder, who had testified that Lentz told her Doris
had come to see him on the night she disappeared, and George Ste-
vens, who had testified that Doris had asked him to accompany her
to pick up Julia on one occasion because she was afraid Lentz might
hurt her. Lentz asked Jackmon if he knew someone who could help
him and Jackmon offered to contact a person named "Mike." Lentz
assured Jackmon that the murders could not be traced back to them
because their incarceration would give them "plausible deniability"
and, at Jackmon’s request, wrote the definition of "plausible denia-
bility" on a piece of paper that Jackmon later turned over to the
authorities. J.A. 3100.

On December 30, 2004, Jackmon called Agent Garrett and advised
him that Lentz was attempting to arrange the murders and had asked
 UNITED STATES v. LENTZ 21
him for the name of someone who might do the job. This got Agent
Garrett’s attention and he told Jackmon to get "as much detail as you
can get" and "suggest[ed] that Lentz could even end up telling Jack-
mon where he dumped Doris’s body." Lentz, 419 F. Supp. 2d at 810
(internal quotation marks omitted).

Over the course of the next week, Jackmon and Lentz had several
follow-up conversations about the murder-for-hire plot. Jackmon told
Lentz that he had arranged for "Mike" to meet with Lentz at the jail
and Lentz related to Jackmon his developing thoughts about the best
way to proceed. Lentz also told Jackmon that he had decided to
merely threaten Marilyn Sauder (the babysitter) and to murder Diane
Ives (the real estate agent) and a prosecutor instead, going so far as
to offer descriptions of how this might be accomplished. Lentz also
gave Jackmon a note containing personal information about Ives,
which Jackmon turned over to the authorities. Also during this time
period, Lentz arrived at the mistaken belief, based upon a newspaper
article about a murder in Springfield (where Jackmon was from), that
Jackmon had arranged to murder a witness in his own case. In the
meantime, the government made arrangements to send an undercover
agent to pose as the hit man "Mike" and meet with Lentz at the jail.

On January 10, 2005, however, Lentz placed a series of three col-
lect calls to Salvato, his attorney, between 9:39 a.m. and 10:26 a.m.,
during which he discussed the plot. As noted earlier, the NNRJ
records all telephone calls placed by inmates. With the exception of
calls placed to the Federal Public Defender’s Office, a recorded mes-
sage is played before each call stating that the call is subject to moni-
toring and recording. When the recipient of the call answers, a second
recording is played stating that the call is from a correctional facility
and is subject to monitoring and recording.

The substance of the recorded conversations between Lentz and
Salvato is set forth in detail in the district court’s opinion. By way of
summary, Lentz called Salvato to ask questions designed to determine
"whether Jackmon could be trusted regarding Lentz’s possible use of
a hit man to murder witnesses and perhaps a prosecutor prior to his
forthcoming retrial." Lentz, 419 F. Supp. 2d at 825. When Salvato
pressed Lentz about the reasons for his inquiry, Lentz confessed that
Jackmon might be able to help Lentz hire a hit man "in case Lentz
22 UNITED STATES v. LENTZ
needed something like that to happen in his case." Id. at 824 (internal
quotation marks and alterations omitted).

Salvato, who knew Jackmon and his reputation as an informant,
was clearly upset by Lentz’s activities and asked Lentz if he was seri-
ous. Lentz assured him that he was serious, replying that "he was sit-
ting in the bowels of hell, that he was at the end of his rope, and that
he’s gotta do what he’s gotta do to survive." Id. at 824-25 (internal
quotation marks and alterations omitted). Salvato warned Lentz that
Jackmon was setting him up and advised Lentz to immediately cease
contact with Jackmon and cancel the scheduled meeting with the "hit
man," who Salvato warned would be a federal agent. When Salvato
warned Lentz that "this is going to end up destroying you at trial,"
Lentz responded, "Like the babysitter and the real estate lady and
some of that shit didn’t?" J.A. 1058. Although Lentz was initially
reluctant to abandon his plan, he ultimately relented and cancelled the
scheduled meeting with the "hit man" shortly after speaking with
Salvato.

C.

We begin with Lentz’s challenge to the district court’s ruling on his
motion to suppress Jackmon’s testimony regarding the murder-for-
hire plot, as well as the "plausible deniability" note, which the gov-
ernment sought to introduce as evidence of Lentz’s consciousness of
guilt. See United States v. Young, 248 F.3d 260, 272 (4th Cir. 2001)
("[E]vidence of witness intimidation is admissible to prove conscious-
ness of guilt if it is both related to the offense charged and reliable.");
United States v. Van Metre, 150 F.3d 339, 352 (4th Cir. 1998) ("A
defendant’s attempt to threaten an adverse witness indicates his con-
sciousness that his case is a weak or unfounded one; and from that
consciousness may be inferred the fact itself of the cause’s lack of
truth and merit." (internal quotation marks omitted)). Lentz asserts
that introduction of the evidence of his conversations with Jackmon
violated his Sixth Amendment right to counsel because Jackmon
deliberately elicited the incriminating statements from him while act-
ing as an agent for the government. We review the district court’s
underlying factual findings regarding the motions to suppress for
clear error and its legal conclusions de novo. See United States v.
Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
 UNITED STATES v. LENTZ 23
In Massiah v. United States, the Supreme Court held that a defen-
dant’s Sixth Amendment right to counsel is violated when the govern-
ment "deliberately elicit[s]" incriminating evidence from an accused
"after he ha[s] been indicted and in the absence of his counsel," and
introduces those statements against him at trial. 377 U.S. 201, 206
(1964); see also United States v. Henry, 447 U.S. 264, 270-71 (1980)
(holding that the use of testimony by a fellow inmate who is a paid
informant acting under the instructions of government agents violates
the Sixth Amendment right to counsel). "However, ‘the mere pres-
ence of a jailhouse informant who had been instructed to overhear
conversations and to engage a criminal defendant in some conversa-
tions [is] not necessarily . . . unconstitutional.’" Harker v. Maryland,
800 F.2d 437, 444-45 (4th Cir. 1986) (quoting Henry, 447 U.S. at 276
(Powell, J. concurring)). The court must look at all of the circum-
stances to determine whether the informant’s actions are "fairly
‘attributable to the government.’" Thomas v. Cox, 708 F.2d 132, 136
(4th Cir. 1983) (quoting Henry, 447 U.S. at 270).

Here, the district court allowed the government to introduce
Lentz’s statements and the note Lentz gave to Jackmon prior to
December 30, 2004 (which included their initial conversation about
the murder-for-hire plot), but excluded all statements and the note
Lentz gave to Jackmon on and after December 30, 2004. At the con-
clusion of the evidentiary hearing, the district court found that:

the government did not initiate the contact with Lentz. Jack-
mon’s placement in C Pod was purely a matter of happen-
stance and was not at the direction or prompting of the
government. Further, once Jackmon was placed in C Pod,
the government did not instruct Jackmon to strike up con-
versations with Lentz; at the outset, Lentz clearly volun-
teered information about the facts of his case and Jackmon
began collecting this information on his own initiative.
Indeed, AUSA Mellin and [Agent] Garrett did not even
know that Jackmon had been brought to the Eastern District
of Virginia by AUSA Fahey. Nor was Jackmon ever offered
any form of payment, whether in the form of monetary
reward or a reduction in sentence, in exchange for collecting
information about Lentz.
24 UNITED STATES v. LENTZ
Lentz, 419 F. Supp. 2d at 812. Thus, the district court found that Jack-
mon was not a government agent prior to his meeting with AUSA
Mellin and Agent Garrett.

The district court then examined the two meetings granted to Jack-
mon by AUSA Mellin and Agent Garrett in early December and
found insufficient evidence that the instructions Jackmon received in
those meetings rendered him a government agent thereafter. Until
December 30, the district court found, Jackmon had simply been told
that he could act as a "listening post" and personalize conversations
with Lentz by bringing up matters of common interest, but that he
could not bring up or otherwise elicit information about Lentz’s kid-
napping case. See Harker, 800 F.2d at 444-45 (holding that fellow
inmate was not acting as a government agent as he was not paid, was
not acting under the instructions or solicitations of the government,
was responding to a general request for information, and was given
no promises); Thomas, 708 F.2d at 133 (holding that there was no
agency relationship where the fellow inmate initiated the contact with
the authorities and was advised "to listen for but not elicit informa-
tion").

With regard to statements and information gained after Jackmon
alerted Agent Garrett to the murder-for-hire scheme on December 30,
however, the district court found that the relationship between Jack-
mon and the government changed as of that conversation. Agent Gar-
rett advised Jackmon that he should get as much information as he
could about the murder-for-hire plot and suggested that Jackmon
might learn where Doris’s body was located. These instructions, the
district court held, had the effect of making Jackmon a government
agent, rendering "Jackmon’s attempts to elicit information from Lentz
. . . fairly attribut[able] to the government" and, therefore, inadmissi-
ble at trial. Lentz, 419 F. Supp. 2d at 815.

On appeal, Lentz argues that the district court should have also
excluded the conversations that occurred prior to December 30. Hav-
ing reviewed the record, we find no clear error in the district court’s
findings of fact and agree with its conclusions of law regarding the
admissibility of this evidence. The instructions AUSA Mellin and
Agent Garrett gave to Jackmon prior to December 30 did not render
Jackmon a government agent or make his activities fairly attributable
 UNITED STATES v. LENTZ 25
to the government. Although Jackmon was finally granted an audi-
ence with the authorities involved in the Lentz case, he was specifi-
cally advised on two separate occasions that he could only be a
listening post and must not elicit information about Lentz’s kidnap-
ping case. AUSA Mellin made no promises, expected nothing, and
had no intention of using Jackmon at the retrial. Nor did the authori-
ties take any steps to place Jackmon in closer proximity to Lentz in
the hopes of obtaining more or better incriminating evidence. At best,
Jackmon had been an informant for the government in prior unrelated
cases and hoped to be the same for the Lentz case, but there was no
showing "that such cooperation extended in any manner to the inves-
tigation" of Lentz, rendering his prior actions irrelevant to the ques-
tion of whether he was acting as such with regard to Lentz. See
United States v. Love, 134 F.3d 595, 604 (4th Cir. 1998); cf. United
States v. Birbal, 113 F.3d 342, 346 (2d Cir. 1997) (rejecting argument
that plea agreement, which required informant to provide the govern-
ment with any information in his possession relating to criminal activ-
ity, made him a "roving" government agent for other cases). The
district court also found as a factual matter that Jackmon did not
deliberately elicit incriminating statements from Lentz prior to
December 30, a finding that we also cannot say was clearly erroneous
based upon the record. Accordingly, we affirm the district court’s
decision denying Lentz’s motion to exclude Jackmon’s testimony
regarding the conversations the two men had prior to December 30
and the "plausible deniability" note that Lentz gave to Jackmon prior
to that date.

D.

We next turn to the district court’s denial of Lentz’s motion to sup-
press the recorded telephone conversations between Lentz and
Salvato. Lentz asserts that this evidence should have been excluded
because it was derived from the Massiah violation and because it was
a protected attorney-client communication. In the alternative, Lentz
argues that the district court abused its discretion in refusing to
exclude the evidence as unduly prejudicial and, barring that, in failing
to include additional excerpts from the recordings under the rule of
completeness.
26 UNITED STATES v. LENTZ
1.

We begin with Lentz’s claim that the district court erred in admit-
ting the recordings because they are derivative evidence, or fruit of
the poisonous tree, obtained as a result of the discussions Jackmon
had with Lentz about the murder-for-hire plot while acting as a gov-
ernment agent. We review the district court’s factual findings for
clear error and its application of the "fruit of the poisonous tree" doc-
trine de novo, viewing the evidence in the light most favorable to the
prevailing party below. See United States v. Najjar, 300 F.3d 466, 476
(4th Cir. 2002).

Derivative evidence, or "fruit of the poisonous tree" is evidence
that "has been come at by exploitation of [an] illegality . . . instead
[of] means sufficiently distinguishable to be purged of the primary
taint." Wong Sun v. United States, 371 U.S. 471, 488 (1963) (internal
quotation marks omitted). Thus, evidence "need [not] be suppressed
if it is somehow attenuated enough from the violation to dissipate the
taint." Najjar, 300 F.3d at 477. There is no "‘per se’ or ‘but for’ rule
that would make inadmissible any evidence, whether tangible or live-
witness testimony, which somehow came to light through a chain of
causation that began with [the constitutional violation]." United States
v. Ceccolini, 435 U.S. 268, 276 (1978) (internal quotation marks
omitted).

[A] direct, unbroken chain of causation is necessary, but not
sufficient to render derivative evidence inadmissible. To
determine whether the fruit is no longer poisonous, we con-
sider several factors, including: 1) the amount of time
between the illegal action and the acquisition of the evi-
dence; 2) the presence of intervening circumstances; and 3)
the purpose and flagrancy of the official misconduct. What
suffices to dissipate the taint from derivative evidence
depends on the specific facts and circumstances of each case
and therefore, is particularly amenable to resolution by the
district court.

Najjar, 300 F.3d at 477 (internal citations omitted); see also United
States v. Gray, 491 F.3d 138, 155 (4th Cir. 2007).
 UNITED STATES v. LENTZ 27
As noted above, Lentz initially approached Jackmon about the
murder-for-hire plot on December 29, 2004, before Jackmon began to
act as a government agent. Statements elicited by Jackmon from
Lentz after December 29, 2004, were suppressed because he had been
given license to do so by Agent Garrett when advised of the plot. It
was at this point that the government, concerned not only about the
kidnapping case, was presented with the separate duty of investigating
new and ongoing criminal activity. Obviously, the government was
not precluded from investigating the new criminal activity or other-
wise acting to protect its intended victims, but because Agent Garrett
instructed Jackmon to learn as much as he could, statements made by
Lentz to Jackmon about the plot thereafter were not admissible in his
kidnapping retrial.

As the district court found, however, there is "no record evidence
. . . to suggest that Jackmon deliberately elicited the statements [that
Lentz made to Salvato]; rather, the evidence convincingly reflects that
Lentz made the statements freely and voluntarily." Lentz, 419 F.
Supp. 2d at 832-33. Nor did Jackmon do anything to encourage Lentz
to involve his attorney in the discussions. On the contrary, Lentz con-
tacted Salvato on his own accord and brought up the murder-for-hire
plot for the purpose of pursuing his plan to meet with the hit man and
arrange the murders; again, a plan that was hatched by Lentz prior to
Jackmon becoming an agent for the government. Lentz had sufficient
opportunity "to consider carefully and objectively his options and to
exercise his free will" in this regard, Taylor v. Alabama, 457 U.S.
687, 691 (1982); see Seidman, 156 F.3d at 553 (Michael, J., concur-
ring), and he did so voluntarily and without guidance, suggestion, or
interference from Jackmon or any other government agent.

To thwart the impact of the obviously voluntary nature of Lentz’s
telephone calls to Salvato, Lentz presses on appeal an interpretation
of the recordings that characterizes his contact as an attempt to seek
"the advice of his attorney about how to proceed in the face of Jack-
mon’s unsolicited meddling." Lentz, 419 F. Supp. 2d at 833. How-
ever, this argument was rejected by the district court as "flatly
contradicted by the contents of the telephone calls," id., a finding that
is not clearly erroneous. Like the district court, we are satisfied that
Lentz’s statements to Salvato were not "come at by exploitation of"
the government’s instructions to Jackmon in the murder-for-hire
28 UNITED STATES v. LENTZ
investigation, but rather "by means sufficiently distinguishable to be
purged of the primary taint." Wong Sun, 371 U.S. at 488 (internal
quotation marks omitted). Accordingly, we affirm the district court’s
determination that the conversations between Lentz and Salvato were
not inadmissible as evidence improperly derived from the Sixth
Amendment Massiah violation.

2.

Lentz next claims that the district court erred in ruling that the
recorded conversations were not protected by the attorney-client priv-
ilege. We review the district court’s underlying factual findings for
clear error and its legal conclusions de novo. See In re Grand Jury
Subpoena, 341 F.3d 331, 334 (4th Cir. 2003).

It is [a] well-settled [principle of law] that confidential conversa-
tions between a defendant and his counsel generally are protected by
the attorney-client privilege, which affords the communications
"complete protection from disclosure." Id. at 335 (internal quotation
marks omitted). However,

[t]he privilege applies only if (1) the asserted holder of the
privilege is or sought to become a client; (2) the person to
whom the communication was made (a) is a member of the
bar of a court, or his subordinate and (b) in connection with
this communication is acting as a lawyer; (3) the communi-
cation relates to a fact of which the attorney was informed
(a) by his client (b) without the presence of strangers (c) for
the purpose of securing primarily either (i) an opinion on
law or (ii) legal services or (iii) assistance in some legal pro-
ceeding, and not (d) for the purpose of committing a crime
or tort; and (4) the privilege has been (a) claimed and (b) not
waived by the client.

Id. (quoting United States v. Jones, 696 F.2d 1069, 1072 (4th Cir.
1982) (per curiam)).

In this case, the district court held that Lentz had waived any
attorney-client privilege with regard to the communications because
 UNITED STATES v. LENTZ 29
he knew they were being recorded and were subject to monitoring by
the NNRJ, destroying any reasonable expectation of privacy in their
substance. See Hawkins v. Stables, 148 F.3d 379, 384 n.4 (4th Cir.
1998) ("[I]mplied waiver occurs when the party claiming the privilege
has made any disclosure of a confidential communication to any indi-
vidual who is not embraced by the privilege."); Jones, 696 F.2d at
1072 ("Any disclosure inconsistent with maintaining the confidential
nature of the attorney-client relationship waives the attorney-client
privilege."). With one exception not applicable here, the district court
found that "[t]he record convincingly establishes that during the
period in question, all outgoing telephone calls from NNRJ were
recorded and subject to monitoring by jail officials and that Lentz and
his counsel knew this was so." Lentz, 419 F. Supp. 2d at 823-24.
Relying primarily upon the Eighth Circuit decision in United States
v. Hatcher, 323 F.3d 666 (8th Cir. 2003), the district court then con-
cluded that this resulted in the destruction of any privilege that would
otherwise have existed. See Lentz, 419 F. Supp. 2d at 828-29;
Hatcher, 323 F.3d at 674 (holding that "[t]he presence of [a] prison
recording device destroyed the attorney-client privilege . . . [b]ecause
the inmates and their lawyers were aware that their conversations
were being recorded [and] could not reasonably expect that their con-
versations would remain private"). In the alternative, the district court
found that the crime-fraud exception to the attorney-client privilege
applied to the conversation because the primary purpose of the tele-
phone conversations was not to seek legitimate counsel, but rather to
corroborate Jackmon’s representations and further Lentz’s murder-
for-hire plot.

On appeal, Lentz encourages us to reject the reasoning of the dis-
trict court, and the Eighth Circuit decision in Hatcher, arguing that
the geographical and practical restrictions upon an inmate’s ability to
speak privately with his attorney from jail should counsel against a
finding that mere notice that the calls would be recorded constitutes
a waiver of the privilege. However, we need not decide this question
because we are satisfied that, under the crime-fraud exception, the
privilege does not apply in the first instance.

As found by the district court, the telephone conversations initiated
by Lentz were designed not for the purpose of seeking legitimate
counsel with regard to his current legal situation, but rather to deter-
30 UNITED STATES v. LENTZ
mine "whether Jackmon could be trusted regarding Lentz’s possible
use of a hit man to murder witnesses and perhaps a prosecutor prior
to his forthcoming retrial." Lentz, 419 F. Supp. 2d at 825. The conver-
sations therefore "invite[d] the inference that Lentz was seriously con-
sidering a murder-for-hire plot, and was calling Mr. Salvato to inquire
about Jackmon’s reliability with respect to information Jackmon had
provided Lentz about his own case." Id. As found by the district court,

the contents of the telephone calls, viewed as a whole, leave
no doubt that Lentz’s primary purpose in calling Mr. Salvato
was to discuss Lentz’s murder-for-hire plot. Specifically,
Lentz sought to corroborate certain things that Jackmon had
told him. . . . The conversations . . . leave no doubt that
Lentz’s purpose in calling Mr. Salvato was to get informa-
tion that would assist Lentz in the planning and carrying out
the murder-for-hire plot.

In sum, then, Lentz called Mr. Salvato in order to assess
the validity of what Jackmon had told him, which would in
turn help Lentz decide whether he should continue to trust
Jackmon and involve Jackmon in the planning and/or execu-
tion of Lentz’s murder-for-hire plot. Accordingly, there can
be little doubt that Lentz, in contacting Mr. Salvato, was
seeking aid and information from his attorney to further his
nascent murder-for-hire plot.

Id. at 831. Because the telephone calls were made for the purpose of
furthering, advancing, or promoting Lentz’s plan to commit criminal
activity and not, as asserted by Lentz, to seek legitimate legal advice
on how to extricate himself from a murder-for-hire plot hatched by
Jackmon or obtain assistance and assurance that he should cease con-
tact with the latter, they are not protected by the privilege. To his
credit, Salvato did advise Lentz to extricate himself from the situation
and cease contact with Jackmon, but that advice was anything but
what Lentz was seeking or hoping to get from him.

To conclude, we are satisfied that the district court’s factual find-
ings are not clearly erroneous and that the district court did not err in
concluding that the conversations were made for the purpose of com-
mitting or furthering the murder-for-hire plot. Because the recordings
 UNITED STATES v. LENTZ 31
fall within the crime-fraud exception to the attorney-client privilege,
we affirm the district court’s denial of the motion to suppress on this
basis.

3.

Lentz next claims that the district court erred in admitting the tele-
phone calls because they were unduly prejudicial under Rule 403 of
the Federal Rules of Evidence.

Rule 403 provides that "[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the dan-
ger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless pre-
sentation of cumulative evidence." Fed. R. Evid. 403. "However, the
mere fact that the evidence will damage the defendant’s case is not
enough — the evidence must be unfairly prejudicial, and the unfair
prejudice must substantially outweigh the probative value of the evi-
dence." United States v. Williams, 445 F.3d 724, 730 (4th Cir. 2006)
(internal quotation marks and alteration omitted). Evidence is unfairly
prejudicial and thus should be excluded under Rule 403 "when there
is a genuine risk that the emotions of a jury will be excited to irratio-
nal behavior, and that this risk is disproportionate to the probative
value of the offered evidence." United States v. Aramony, 88 F.3d
1369, 1378 (4th Cir. 1996) (internal quotation marks omitted).

"It is not an easy thing to overturn a Rule 403 ruling on appeal."
United States v. Udeozor, 515 F.3d 260, 264 (4th Cir. 2008). Where
the evidence is probative, "the balance under Rule 403 should be
struck in favor of admissibility, and evidence should be excluded only
sparingly." Aramony, 88 F.3d at 1378; see also Udeozor, 515 F.3d at
264-65 ("Rule 403 is a rule of inclusion, generally favoring admissi-
bility.") (internal quotation marks omitted). "Indeed, a district court’s
decision to admit evidence over a Rule 403 objection will not be over-
turned except under the most extraordinary circumstances, where that
discretion has been plainly abused." Udeozor, 515 F.3d at 265 (inter-
nal quotation marks omitted).

The district court did not abuse its discretion in admitting evidence
of the telephone conversations over Lentz’s Rule 403 objection. The
32 UNITED STATES v. LENTZ
telephone conversations were undoubtedly prejudicial to Lentz, just
as all evidence suggesting guilt is prejudicial to a defendant. How-
ever, the evidence was prejudicial for the same reason that it was
highly probative — it strongly demonstrated Lentz’s consciousness of
guilt and resulted from Lentz’s independent decision to further his
murder-for-hire plot by involving his counsel. Nor are we persuaded
that Lentz was hindered in his efforts to defend himself against the
conversations because of the attorney-client privilege. As the owner
of the privilege, Lentz was free to waive the privilege as to any con-
versations he felt were necessary to explain his words. But he cannot
obtain exclusion of otherwise-admissible evidence of an attorney-
client communication subject to the crime-fraud exception by broadly
claiming that he cannot defend against it without disclosing attorney-
client communications.

4.

Lentz’s final complaint is that the district court’s admission of the
recorded conversations as redacted violated the Rule of Complete-
ness, set forth in Federal Rule of Evidence 106.

Rule 106 provides that "[w]hen a writing or recorded statement or
part thereof is introduced by a party, an adverse party may require the
introduction at that time of any other part or any other writing or
recorded statement which ought in fairness to be considered contem-
poraneously with it." Fed. R. Evid. 106. Its purpose "is ‘to prevent a
party from misleading the jury by allowing into the record relevant
portions of the excluded testimony which clarify or explain the part
already received.’" United States v. Bollin, 264 F.3d 391, 414 (4th
Cir. 2001) (quoting United States v. Wilkerson, 84 F.3d 692, 696 (4th
Cir. 1996)).

Rule 106 does not, however, "render admissible the evidence
which is otherwise inadmissible under the hearsay rules." Wilkerson,
84 F.3d at 696. Nor does it require the admission of "self-serving,
exculpatory statements made by a party which are being sought for
admission by that same party." Id.; see also Bollin, 264 F.3d at 414
("The fact that some of the omitted testimony arguably was exculpa-
tory does not, without more, make it admissible under the rule of
completeness."). We review the trial court’s decision to deny admissi-
 UNITED STATES v. LENTZ 33
bility of evidence under Rule 106 for an abuse of discretion. See
Wilkerson, 84 F.3d at 696.

Prior to the introduction of the recordings as evidence in this case,
the district court carefully and individually considered all excerpts
proposed to be included or excluded by both sides, but declined to
allow into evidence various self-serving exculpatory statements made
by Lentz to Salvato during the conversation as well as various hearsay
statements made by Salvato which were unnecessary to place Lentz’s
comments in perspective. Having reviewed the proposed additions
and the rulings of the district court, we are satisfied that the district
court did not abuse its discretion in excluding the omitted portions as
they were neither necessary to avoid misleading the jury or to place
the portions admitted into proper context.

IV.

Lentz next asserts that the district court abused its discretion in
admitting at trial various hearsay statements of Doris regarding com-
ments Lentz made to her about the murder trial of O.J. Simpson (the
"O.J. statements"), as well as a missing person poster that was placed
in Lentz’s neighborhood the weekend after Doris’s disappearance.
According to Lentz, this evidence was unfairly prejudicial and should
also have been excluded under Rule 403 of the Federal Rules of Evi-
dence.

A.

The O.J. statements consist of a number of statements that Lentz
made to Doris about the O.J. Simpson case, as related by Doris to var-
ious friends and acquaintances. For example, Doris told her priest that
Lentz told her, "[i]f O.J. can do it and get away with it, so can I." J.A.
742-43. She told another pastor that Lentz had "asked her if she was
watching the O.J. trials," J.A. 781, told her that "[t]hese things can
happen again, you know," J.A. 781, and "said that if he did it, there
would be no body because he was too intelligent," J.A. 782. Simi-
larly, Doris told her friend Jennifer Rigger that Lentz told her "that
thing that happened with O.J. Simpson, that could happen again, that
could happen to her, and she should be careful," J.A. 829.
34 UNITED STATES v. LENTZ
Prior to the first trial, the government filed a motion in limine seek-
ing to introduce the O.J. statements under the forfeiture-by-
wrongdoing exception to the hearsay rule set forth in Rule 804(b)(6)
of the Federal Rules of Evidence, which provides that hearsay state-
ments by a declarant are admissible if the defendant engaged or
acquiesced in wrongdoing that was intended to, and actually did
result, in the declarant’s unavailability to testify in person. The gov-
ernment argued that Doris was unavailable to testify regarding
Lentz’s statements because Lentz killed her and, therefore, that her
statements should be admitted under the exception.

The district court denied the motion, finding that the forfeiture-by-
wrongdoing exception did not allow introduction of the statements
and that the statements would in any event be unduly prejudicial
under Rule 403(b). In an unpublished decision, a divided panel of this
court affirmed, but for different reasons. See Lentz I, 58 Fed. Appx.
at 962-63. Judge Michael affirmed the district court’s exclusion of the
statements under Rule 403(b), concluding that the district court did
not abuse its discretion in this regard, and declined to reach the Rule
804(b)(6) issue. Judge Traxler affirmed the exclusion of the state-
ments under Rule 804(b)(6), concluding that the rule applies only in
the specific case where the unavailable declarant was expected to tes-
tify. Judge King dissented on both points, expressing his views that
the forfeiture-by-wrongdoing exception of Rule 804(b)(6) was not so
limited and that the district court abused its discretion in excluding
the O.J. statements because they were "plainly relevant and necessary
to the Government’s case; and to the extent that they are prejudicial
to Lentz’s defense, that prejudice is entirely self-inflicted." Id. at 969.

After our decision in Lentz I, another panel of our court issued a
published decision holding that "Rule 804(b)(6) applies whenever the
defendant’s wrongdoing was intended to, and did, render the declar-
ant unavailable as a witness against the defendant, without regard to
the nature of the charges at the trial in which the declarant’s state-
ments are offered." United States v. Gray, 405 F.3d 227, 241 (4th Cir.
2005). Under this subsequent precedent, the O.J. statements would be
admissible, assuming the district court found by a preponderance of
the evidence that Lentz successfully engaged in wrongdoing that was
intended to procure Doris’s unavailability as a witness. Consequently,
the government again moved to introduce the O.J. statements before
 UNITED STATES v. LENTZ 35
the district court on retrial. After concluding that it was not bound by
the decision in Lentz I, the district court found, by a preponderance
of the evidence, that Lentz had procured Doris’s unavailability, ren-
dering the forfeiture-by-wrongdoing exception to the hearsay rule
applicable, and the court rejected Lentz’s argument that the evidence
should be excluded as unduly prejudicial under Rule 403(b). See
United States v. Lentz, 384 F. Supp. 2d 934, 944 (E.D. Va. 2005).

1.

Like the district court, we begin our inquiry with Lentz’s assertion
that the reconsideration of the district court’s exclusion of the O.J.
statements in the first trial was prohibited by the law of the case doc-
trine.

The law of the case doctrine "‘posits that when a court decides
upon a rule of law, that decision should continue to govern the same
issues in subsequent stages in the same case.’" United States v. Ara-
mony, 166 F.3d 655, 661 (4th Cir. 1999) (quoting Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 816 (1988)). The mandate rule
is a "specific application of the law of the case doctrine." United
States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (internal quotation marks
omitted).

Under the law of the case doctrine, as a practical matter,
once the "decision of an appellate court establishes ‘the law
of the case,’" it "must be followed in all subsequent pro-
ceedings in the same case in the trial court or on a later
appeal unless: (1) a subsequent trial produces substantially
different evidence, (2) controlling authority has since made
a contrary decision of law applicable to the issue, or (3) the
prior decision was clearly erroneous and would work mani-
fest injustice."

Aramony, 166 F.3d at 661 (alteration omitted) (quoting Sejman v.
Warner-Lambert Co., 845 F.2d 66, 69 (4th Cir. 1988); Sejman, 845
F.2d at 68 (noting that the law of the case doctrine is "not an ‘inexora-
ble command’ but rather a prudent judicial response to the public pol-
icy favoring an end to litigation"). "Although the doctrine applies
both to questions actually decided as well as to those decided by nec-
36 UNITED STATES v. LENTZ
essary implication, it does not reach questions which might have been
decided but were not." Sejman, 845 F.2d at 69 (internal quotation
marks omitted).

In the instant case, we find no error in the district court’s decision
that revisiting the admissibility of the "O.J. statements" was appropri-
ate after our remand in Lentz II. Given the intervening Gray decision,
the principal legal reasoning behind the district court’s decision to
exclude those statements as hearsay not admissible under the Rule
804(b)(6) exception was rejected by published decision of this court
as an erroneous application of the rule. And, because the conviction
had been completely overturned and a new trial granted by us in the
interim, we likewise find no abuse of discretion in the district court’s
determination that the Rule 403(b) alternative ruling could be recon-
sidered in light of the circumstances at the retrial and anticipated evi-
dentiary showings. See Christianson, 486 U.S. at 817 ("A court has
the power to revisit prior decisions of its own or of a coordinate court
in any circumstance, although as a rule courts should be loathe to do
so in the absence of extraordinary circumstances."). With regard to
the mandate rule, two judges in Lentz I agreed on a judgment that the
O.J. statements should be excluded, but they did not agree on whether
exclusion should rest upon Rule 804(b)(6) or Rule 403(b). In light of
the "exceptional circumstance[ ]" of a change in controlling authority
with respect to Rule 804(b)(6) after Lentz I, the mandate did not pre-
vent the district court from reconsidering the admissibility of the
statements. See Aramony, 166 F.3d at 661.

2.

Turning to the merits of the Rule 804(b)(6) inquiry, the district
court found by "a preponderance of the evidence that Lentz engaged
in wrongdoing that was intended, at least in part, to procure Doris’
unavailability as a witness and that did, in fact, procure her unavaila-
bility as a witness." Lentz, 384 F. Supp. 2d at 944. The district court’s
findings are not clearly erroneous and it obviously did not abuse its
discretion in ruling consistent with Gray.

The Rule 403(b) objection on remand presents a more interesting
inquiry. Clearly, there is room for a legitimate difference of opinion
on the issue. The judges of this panel previously exhibited that differ-
 UNITED STATES v. LENTZ 37
ence of opinion, as have the two district judges who considered the
matter below. We, however, review only the most recent decision by
the district court on this issue, which found that "while the O.J. state-
ments are indeed damaging to Lentz’s case, they are nonetheless
‘highly probative of Lentz’s commission and concealment of Doris’
murder’" and deemed it "significant to note that any potential preju-
dice arising out of the statements is entirely self-inflicted, as ‘Lentz
himself chose to make reference to O.J. Simpson in his threats to
Doris.’" J.A. 517 (quoting Lentz I, 58 Fed. Appx. at 969). Thus, the
district court considered the evidence and agreed with Judge King’s
previous view regarding the probative value and prejudicial nature of
the O.J. statements. We cannot say that the district court abused its
discretion in this regard.

B.

Lentz also challenges the district court’s denial of his motion to
suppress the "Missing" poster that was distributed in Lentz’s neigh-
borhood the weekend after Doris disappeared. As noted above, the
poster contained a photograph of Doris with a physical description
and stated that "Doris disappeared around 7 p.m., Tuesday April 23,
1996 after telling a friend that she was going to Ft. Washington,
Maryland to pick up her daughter." J.A. 109. Lentz argues that the
district court should have excluded the poster as unduly prejudicial
under Rule 403.

There is nothing prejudicial or inflammatory in the poster itself or
in its language. Alone, it is not prejudicial at all. The poster is prejudi-
cial because, when considered in conjunction with other evidence, it
contradicts the story Lentz gave to the police on the Thursday and Fri-
day after Doris disappeared, i.e., that he had last spoken with Doris
between 5:00 p.m. and 6:00 p.m. on April 23, 1996, when he told her
that Julia had not returned and that she should not come to his home
in Maryland. If this were true, then Doris would not have told her
friend, Jennifer Rigger, at 7 p.m. that she was leaving for Lentz’s
home to pick up Julia. On the Sunday evening after Doris disappeared
— after the poster was disseminated in Lentz’s neighborhood —
Lentz called the investigating officer’s line at 11:57 p.m. and left a
voice-mail message that changed the time of his supposed conversa-
tion with Doris to 6:50 p.m., but not its substance. Thus, the existence
38 UNITED STATES v. LENTZ
of the poster established an alternative rationale for Lentz’s act of
changing his story regarding the last time he spoke to Doris — he
wanted to conform his story to the facts as known by the police. To
that extent the introduction of the poster was prejudicial. For the same
reason, however, the poster was highly probative evidence of Lentz’s
guilt. As noted by the district court, "it is reasonable to infer that a
person who has committed a kidnapping and murder might wish to
change his story or alibi to coincide with other evidence learned or
publicized by law enforcement officers regarding the offense in
issue." Lentz, 384 F. Supp. 2d at 949-50. We cannot say that the dis-
trict court abused its discretion in determining that the probative value
of the poster outweighed its prejudicial effect in this regard.

V.

Lentz next argues that the district court abused its discretion in
denying his motion for recusal under 28 U.S.C.A. § 455(a) (West
2006). See United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003).
Specifically, Lentz argues that the district court prejudged the ulti-
mate issue of his guilt of kidnapping resulting in death because, when
reconsidering the forfeiture-by-wrongdoing exception under Rule
804(b)(6) issue, the district court made a determination, by a prepon-
derance of the evidence, that Lentz had caused the unavailability of
Doris as a witness. By doing so, Lentz argues, the district court pre-
judged the ultimate issue of Lentz’s guilt or innocence, rendering fair
judgment during the trial impossible. Lentz also asserts that the dis-
trict court’s published opinion on the motion in limine demonstrates
a lack of impartiality and inappropriate antagonism towards him.

A district court should grant a motion for recusal if the judge’s "im-
partiality might reasonably be questioned." 28 U.S.C.A. § 455(a).
However, "judicial rulings alone almost never constitute a valid basis
for a bias or partiality motion." Liteky v. United States, 510 U.S. 540,
555 (1994). And, "opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current proceed-
ings, or of prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible." Id. Even
remarks made "that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias or
 UNITED STATES v. LENTZ 39
partiality challenge." Id. The "presiding judge is not . . . required to
recuse himself simply because of unsupported, irrational or highly
tenuous speculation." Cherry, 330 F.3d at 665 (internal quotation
marks omitted). "Put simply, the proper test to be applied is whether
another with knowledge of all of the circumstances might reasonably
question the judge’s impartiality." Id. (internal quotation marks and
alteration omitted).

Here, the district court, in ruling upon the government’s motion in
limine, made a threshold determination of whether the forfeiture-by-
wrongdoing exception to the hearsay rule applied to the otherwise-
inadmissible O.J. statements. This required the district court to make
a factual determination as to whether the facts established by "a pre-
ponderance of the evidence that Lentz engaged in wrongdoing that
was intended, at least in part, to procure Doris’ unavailability as a wit-
ness and that did, in fact, procure her unavailability as a witness."
Lentz, 384 F. Supp. 2d at 944. He concluded that the facts did suffi-
ciently establish such wrongdoing and admitted the evidence.

In denying the motion to recuse, the district court correctly noted
that his previous "ruling merely recited facts and evidence presented
against defendant in the first trial which were sufficient to meet the
preponderance of the evidence standard applicable to the Rule
804(b)(6) determination. . . . [W]hile some of those facts may reflect
adversely on defendant, that is the unavoidable result of many eviden-
tiary rulings adverse to defendant and cannot serve as a basis for
recusal under § 455(a)." J.A. 544. Thus, contrary to Lentz’s assertion,
the district court did not find "Lentz guilty of kidnapping and killing
Doris . . . before the evidence [was] presented to the jury." Appel-
lant’s Brief at 71. Rather, the district court, using a preponderance of
the evidence standard, made the necessary factual findings to deter-
mine the evidentiary question before it and, in doing so, did not
exhibit such "favoritism or antagonism [as to] make fair judgment
impossible." Liteky, 510 U.S. at 555. Accordingly, the district court
did not abuse its discretion in denying the motion to recuse.

VI.

Lentz’s next challenge is to the sufficiency of the evidence to prove
the requisite "holding" element of kidnaping under § 1201. We must
40 UNITED STATES v. LENTZ
sustain the guilty verdict if, viewing the evidence in the light most
favorable to the government, the verdict is supported by substantial
evidence. See United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc) (citing Glasser v. United States, 315 U.S. 60, 80
(1942)). "[S]ubstantial evidence is evidence that a reasonable finder
of fact could accept as adequate and sufficient to support a conclusion
of a defendant’s guilt beyond a reasonable doubt." Id.

In Lentz II, we rejected Lentz’s similar claim that the government’s
evidence was insufficient to prove that he held or otherwise restrained
Doris for ransom, reward, or some other reason, holding that "the evi-
dence, though circumstantial, was sufficient to support the jury’s
determination that, upon Doris’s arrival at Lentz’s home, Lentz
exerted an unlawful physical or mental restraint for an appreciable
period against Doris’s will." Lentz II, 383 F.3d at 202. The evidence
on retrial did not meaningfully differ in this regard. Viewed in the
light most favorable to the government, "there was a logical and sup-
porting evidentiary basis for the jury to conclude that Doris was
‘held’ by Lentz after she arrived at [Lentz’s] house but before the
fatal wounds were inflicted" and, more specifically, that Lentz "either
physically forced or lured [Doris] inside" upon her arrival "or other-
wise confined her against her will for an appreciable period of time
in order to accomplish the purpose of the seizure — her murder and
its accompanying benefit to him in the domestic litigation." Id. at 203.
Accordingly, we find that the holding element is supported by sub-
stantial evidence and reject Lentz’s appeal on this basis as well.

VII.

Lentz’s final assertion is that facts demonstrating "unaccompanied
inveiglement" across state lines cannot be relied upon to establish the
jurisdictional requirement that the kidnapping victim be "willfully
transported in interstate . . . commerce." 18 U.S.C.A. § 1201(a)(1).

As acknowledged by Lentz, we have previously considered and
rejected this interpretation of the jurisdictional component of the fed-
eral kidnapping statute. See Lentz II, 383 F.3d at 200 (holding that the
jurisdictional requirement is shown if "the kidnapper ‘willfully caused
unaccompanied travel over state lines’" (quoting United States v.
Wills, 234 F.3d 174, 179 (4th Cir. 2000)). We held that "the jury rea-
 UNITED STATES v. LENTZ 41
sonably concluded that Lentz, by telling Doris that Julia had returned
from Indiana and arranging for Doris to pick her up from his home
on April 23, willfully caused Doris to be transported across state lines
from her home in Virginia to his home in Maryland, thereby satisfy-
ing the jurisdictional component of the Act." Lentz II, 383 F.3d at
200. Because the evidence on this point is similarly unchanged, Lentz
concedes that our precedent in Lentz II forecloses his argument, but
seeks to preserve the issue for further review. Accordingly, Lentz is
not entitled to relief on this basis.

VIII.

For the foregoing reasons, we affirm the jury’s conviction of Lentz
for interstate kidnapping resulting in the death of Doris Lentz.

AFFIRMED