## Filed: December 3, 2003

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 01-4630(L) (CR-99-396)

United States of America,
Plaintiff - Appellee,

versus

Christopher Andaryl Wills, etc.,
Defendant - Appellant.

O R D E R

The court amends its opinion filed October 7, 2003, and
reported at 346 F.3d 476 as follows:
On page 30, first full paragraph, line 8 -- the date of “July

25" is corrected to read “June 25.”
For the Court - By Direction

/s/ Patricia S. Connor ClerkPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

4444444444444444444444444444444444444444444444447 UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 01-4630
CHRISTOPHER ANDARYL WILLS, a/k/a Ed Short, a/k/a Michael Wills, Defendant-Appellant. 4444444444444444444444444444444444444444444444448
4444444444444444444444444444444444444444444444447 UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 01-4813
CHRISTOPHER ANDARYL WILLS, a/k/a Ed Short, a/k/a Michael Wills, Defendant-Appellant. 4444444444444444444444444444444444444444444444448
4444444444444444444444444444444444444444444444447 UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 01-4964
CHRISTOPHER ANDARYL WILLS, a/k/a Ed Short, a/k/a Michael Wills, Defendant-Appellant. 4444444444444444444444444444444444444444444444448
Appeals from the United States District Court for the Eastern District of Virginia, at Alexandr ia. Leonie M. Brinkema, District Judge. (CR-99-396) Argued: April 4, 2003
Decided: October 7, 2003Before WIDENER, WILKINSON, and MOTZ, Circuit Judges.

____________________________________________________________ Affirmed by published opinion. Judge Widener wrote the opinion, in which Judge Wilkinson and Judge Motz concurred.

____________________________________________________________ COUNSEL

ARGUED: Jonathan D. Hacker, O'MELVENY & MYERS, L.L.P., Washington, D.C., for Appellant. Ja mes L. Trump, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Alan H. Yamamoto, Alexandria, Virginia, for Appellant . Paul J. McNulty, United States Attorney, Kevin V. Di Gregory, Assistant United States Attorney, Vincent L. Gambale, Assistant Un ited States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

____________________________________________________________ OPINION WIDENER, Circuit Judge:The defendant, Christopher Andaryl Wills, was convicted of kidnapping resulting in death, in violation of 18 U.S.C. § 1201(a)(1), and interstate stalking resulting in d eath, in violation of 18 U.S.C. § 2261A. On appeal, Wills raises a multitude of issues, challenging his convictions and sentence. For the reasons that follow, we affirm Wills' convictions and sentence. 1

I. At approximately 2:00 a. m. on April 4, 1998, Zabiullah Alam returned home from work to the apartment that he shared with his two

____________________________________________________________
1 On March 6, 2003, Wills filed a pro se motion for leave to file a supplemental memorandum of law out of time. We grant the motion.

2aunts and a cousin. Upon his return, Alam discovered an intruder, whom he later identified as the defendant, Christopher Wills, in the living room of his apartment holdi ng his aunt's purse. Wills fled by jumping off the apartment balcony, taking with him Alam's aunt's purse and his cousin's pants and wa llet. After a high speed chase, the Fairfax County, Virginia police a rrested Wills and charged him with burglary. On June 15, 1998, a preliminary hearing was held in the Fairfax County General District Court. During the hearing, Alam appeared as the Commonwealth's sole witness and identified Wills as the person whom he had discovered burglarizi ng his home. The court determined that there was probable cause to believe that Wills committed the burglary and bound the case over to the state grand jury. The grand jury was scheduled to meet on July 20, 1998, and Wills, if indicted, would have been arraigned on July 21, 1998. Wills was then released on bond. During the evening of June 15, 1998, Wills spoke via telephone tohis brother, Michael Wills, who was incarcerated at the Augusta Correctional Facility near Staunton, Vi rginia. The facility monitored and recorded its prisoners' telephone conversations. During the call, Wills discussed the preliminary heari ng which took place earlier that day. Wills described how Alam identifie d him at the hearing and made several statements indicating that he was formulating a plan to stop Alam from testifying against him. 2

____________________________________________________________
2 After Wills recounted Alam's identif ication of him at the hearing, Wills stated, "But I ain't got time to leave it at that" and then stated, "That ain't no joke." Later during th e conversation, Wills and his brother further discussed the hearing and indicated plans to stop Alam: Michael Wills: You know what happened today, right? Christopher Wills: Huh? Michael Wills: You know what happened today for you, when you, when you went — Christopher Wills: When I went where I went?

Michael Wills: Yes. Christopher Wills: Um-hum.

3On or about June 17, 1998, a man, later identified by sales representative Reginald Johnson to be Christopher Wills, obtained Cellular

____________________________________________________________ Michael Wills: You can't think on that, Shorty. Christopher Wills: Huh?

Michael Wills: You can't think on it. Christopher Wills: Come on now, who you talking to? Michael Wills: (Unintelligible.) Christopher Wills: All it is. I gotta do it and do it and now, you know what I mean?
Michael Wills: Yeah, check it out. Christopher Wills: I'm, I'm just thinking on how, you know.

Michael Wills: Yeah. Christopher Wills: On the strength of basically all that I know. You know what I mean? Understand, it, it's [sic] spot, location.

Michael Wills: Yeah. Christopher Wills: And look.

Michael Wills: Yeah. Christopher Wills: I need to know wheels; you know what I'm saying? Michael Wills: I got you. I got you. I got you. I got you. Christopher Wills: The other — Michael Wills: I got you. Christopher Wills: And then I can tee it on it perfect. Michael Wills: I got you.Christopher Wills: Other than that, I've got to use some trickery. Michael Wills: Hey. Christopher Wills: Ah, but it's gonna get done through, you know, that. During another conversation on June 15, 1998, Wills further described the preliminary hearing and appeared to describe how he had his "peoples" follow Alam:

4One service for a pre-existing cell phone at a Radio Shack in Washington, D.C., using the fictitious na me "Ed Short." He prepaid for the service in cash and listed what was later determined to be a fictitious address in Temple Hills, Maryland as his residence. On or about June 18, 1998, a flier was left under Alam's door advertising a grounds keeping job at an apartment complex, which paid $11.00 an hour plus benefits. The flier listed the tele phone number of the cellular service activated by "Ed Short." On June 18, 1998, Wills spoke with his brother and stated that he had put "Plan A in action, right."
On or about June 18, 1998, Wills returned to the same Radio Shack, complaining that the cell phone did not function properly. On June 19, 1998, or sometime thereafter, the government contends that a handwritten note dated "6/19/98" was left at Alam's apartment which read, "Wer'e [sic] sorry that our phones were down yesterday 6/18/98 Please! Try our line again. Were [sic] open 7 days a week. Jobs!!" 3 At the bottom of the note the same telephone number was

____________________________________________________________ Christopher Wills: They, they theydid, 'cause I had my peoples on, on Baywatch.

Michael Wills: Yeah.

* * * * Christopher Wills: The peoples was undercover, Shorty. You know how I play.

Michael Wills: Yeah. Christopher Wills: People's undercover sittin' right with him.

Michael Wills: Yeah. Christopher Wills: And peoples stayed on him for me.

Michael Wills: Yeah. Christopher Wills: But they slippe d up. I told them to check wheels, and they, they slipped on that. You understand?

Michael Wills: Yeah. Christopher Wills: They slipped on that, `cause when them people put the cuffs, they lost their mind. Told them they can't do that, see? "`Cause by trippin', you just cost me the wheels."

3 Alam's aunt found the note with tape stuck to it among Alam's papers in November 1998 and turned it over to the police.

5listed. On the evening of June 19, 1998, Wills again spoke with his brother and referred to being at Radi o Shack and to the fliers and indicated that the phone which he had activated was not functioning properly. 4
Prior to his disappearance, Alam told his family and friends that he had called the number listed on the flie rs to arrange an interview for the grounds keeping job. Alam told them that he had scheduled the job interview for 5 p.m. on June 25, 1998 in Washington, D.C. Alsoprior to Alam's disappearance, Alam's cousin took a telephone message for Alam from a man who identified himself as Feleec or Felliece 5

____________________________________________________________
4 The following is an excerpt from the June 19, 1998 conversation: Christopher Wills: I haven't been do sh- — I'm trying to get this dude, man. If I don't, my ass is grass.

Michael Wills: Yeah. Christopher Wills: You hear what I am saying?

Michael Wills: Yeah. Christopher Wills: And the joint that I got plugged in for him to dial was fucked up, so they could have been calling me.

Michael Wills: Yeah. Christopher Wills: You know what I mean? I'm getting, I'm, I'm, I'm hitting with the draw-out moves, to come to come (unintelligible). You know what I mean?

Michael Wills: Yeah. Christopher Wills: I got this and I, I already got the fliers out and everything, so I'm just waiting, you know, for them to get it and call, and, I ain't got no calls yet, man. I — and I'm, and I'm — I don't wanna give them up; you know what I mean? I'm, I'm trying to, you know, figure out how to go at him. Michael Wills: Yeah, y eah, yeah. I got it.

5 At trial, the government offered evidence that the same name was used twice in 1998 by a man calling the Augusta Correctional Center who claimed to be an attorney for Michael Wills. During those calls, "Feleec" gave Christopher Wills' telephone number as his own. He also gave Wills' Washington, D.C. home a ddress and his bus iness address as his own.

6(phonetic) and who said that he wa s calling with regard to the grounds keeping job. The man gave the numbe r listed on the fliers as his telephone number. On June 25, 1998, the day of his scheduled interview, Alam returned a page message that he had received while he was with his friend, Ali Muradi. While Muradi listened, Alam discussed the grounds keeping job with a Mr. Felliece and later told Muradi that hewas to meet Mr. Felliece's secretary at Union Station. At approximately 5 p.m. that night, Alam le ft Muradi's apartment in Fairfax County, Virginia for the job interview. At 6:03 p.m., Alam was stopped by a District of Columbia police officer on the 1200 block of F Street, N.W., Washington, D.C., and was given a citation for not wearing his seat belt. On June 26, 1998, after not hearing from Alam since he left for his interview, Alam's family reported him missing to the Fairfax County police. Also on June 26, Michael Wills called Christopher Wills and asked him, "You handle the busine ss?" Wills replied, "Yeah." Then Michael Wills asked, "Everything taken care of?" and Wills replied, "Taken care of." In a second conve rsation on June 26, Wills attempted to describe what had taken place by using references to the movie, CASINO. 6 In a later conversation, Michael Wills asked his brother,

____________________________________________________________
6 The conversation was as follows: Christopher Wills: Hey, I'm gonna tell you some things right.

Michael Wills: Yeah. Christopher Wills: But you know I can't say it on the phone, 'cause it pertains to something, you know.

Michael Wills: Yeah. Christopher Wills: But anyway, I'm going to tell you about it. You know me, I'm, I'm, I'm, I'm, I'm, I'm, I'm, I'm Casino

. Michael Wills: Yeah. Christopher Wills: You see the movie?

Michael Wills: Yeah. Christopher Wills: All right.
Michael Wills: No, I ain't seen the movie.

7"You got rid of all of that , didn't you?" and Christopher Wills responded, "why you had to go there?" Wills then told his brother, Michael, that his "people" were "on the scene, but they don't know disposal" and "[a]ll they can say is I saw, but take us to, can't do." 7

____________________________________________________________ Christopher Wills: You didn't?

Michael Wills: No. We don't see that shit down here. Christopher Wills: Good God Almighty. Well anyway, I was doing a Casino joint, right?

Michael Wills: Yeah. Christopher Wills: Do you know — Mike?

Michael Wills: Yeah. Christopher Wills: Going down, sweating ass naked, getting shit ready, right?

Michael Wills: Yeah.

7 The complete conversation was as follows: Michael Wills: You know, you know, you know, you move, you move yet? Christopher Wills: Huh? Michael Wills: You know, did (unintelligible) you already moved? Christopher Wills: What about it? Michael Wills: You got rid of all of that, didn't you? Christopher Wills: Mike, what you — why you had to go there? Michael Wills: (Unintelligible) Christopher Wills: Mike.

Michael Wills: What? Christopher Wills: I've been in jail for eight years. I've done seen every motherfucking Unsolved Mystery , every America's Most Wanted , every Cops , every motherfucking New York Undercover , every NYPPD , everything. I've read every newspaper came out every day, every Metro section, every paper Cou-, County West. Come on, listen, who are you

8On July 28, 1998, the police discovered Alam's car abandoned in

____________________________________________________________ talking to? Goddamn, man. What — where, where you at? Michael Wills: You know. You know, but them people, your peoples don't, ah — Christopher Wills: But see, see, see, see. Michael Wills: But your people don't have the scoop do they? Christopher Wills: Listen.

Michael Wills: What? Christopher Wills: What you don't understand. See I'm noteven going to picket. I'll talk to you tomorrow. Michael Wills: Okay. Christopher Wills: You, you talking about went, went, went,went. The nigger ain't went a motherfucking place. See, that's where you sleeping at. I know what I'm doing, nigger. I ain't have to show my face, nigger. I know what the fuck I'm doing. I got this. I got this. Michael Wills: All right. Christopher Wills: Nigger, I know what the fuck I'm doing. Ain't nobody going nowhere and showing up nowhere or nothing, nigger. I ain't no fool, you understand?
Michael Wills: So what, but, but —Christopher Wills: Baby, I handle, I handle my business, nigger. I ain't had to show my face, period. Michael Wills: The people at the (unintelligible), they ain't — them people ain't got no scoop, do they? Christopher Wills: Who? Michael Wills: Your people. Christopher Wills: What?

9an apartment parking lot in Prince George's County, Maryland. Alam has not been seen since June 25, 1998.
On November 3, 1999, a fede ral grand jury sitting in the Eastern District of Virginia returned an indictment charging Christopher Wills with one count of kidnapping in vi olation of 18 U.S.C. § 1201(a)(1). On December 9, 1999, a superseding indictment was returned which included one count of interstate stal king resulting in death in violation of 18 U.S.C. § 2261A. On February3, 2000, a second superseding indictment was returned, which included minor changes.
On December 13, 1999, Wills a ppeared in court for arraignment on his superceding indictment. While he was there, Wills spoke with another prisoner, James Black, w ho commented that Wills would be eligible to receive the death pe nalty, if convicted. In response to

____________________________________________________________ Michael Wills: Your people ain't got no scoop, do they? Christopher Wills: Yeah. They was on the scene, but they don't know disposal. You see what I'm saying?

Michael Wills: Huh? Christopher Wills: They could. I said they're on the scene.

Michael Wills: Yeah. Christopher Wills: You understand?

Michael Wills: Yeah. Christopher Wills: Go sit down, Crystal. Michael Wills: (Laughs.) Christopher Wills: All they could say is I saw, but take us to, can't do. You understand?

Michael Wills: Yeah. Christopher Wills: You see what I'm saying? Oh, I, I don't know what your talking about. They're lying. They're just making it up.

Michael Wills: Yeah. Christopher Wills: You understand?

Michael Wills: Yeah.

10Black's comment, Wills said that he would not receive the death penalty because "they'll never find the body." Alonzo Nichols, another prisoner in court that day, overh eard Wills' conversation with Black. Nichols recalled Wills telling Black, "They can't give me the death penalty because they ain't never going to find the body."
On December 16, 1999, Wills filed a motion to dismiss Count One of the indictment (the kidnapping count) for lack of subject matter jurisdiction and for insufficiency of the offense charged. On February 4, 2000, Wills filed a motion to dism iss Count Two of the indictment (the interstate stalking count), arguing that the facts were insufficient for a grand jury to find probable cause to indict him for interstate stalking. On February 15, 2000, the district court granted Wills' motion to dismiss Count One of the indictment (the kidnapping count) for lack of jurisdiction and denied his motion to dismiss Count Two of the indictment (the interstate stal king count). The government filed an interlocutory appeal with this court. In United States v. Wills , 234 F.3d 174 (4th Cir. 2000) (hereinafter Wills I ), this court addressed the issue of "whether jurisdiction is established under the Federal Kidnapping Act when a victim, acting becau se of false pretenses initiated at the instance of the defendant, tran sports himself across state lines without accompaniment by the allege d perpetrator or an accomplice." Wills I , 234 F.3d at 176. This court found that"[t]he plain language of the [Federal Kidnapping] Act does not require that the defendant accompany, physically transport, or provide for the physical transportation of the victim. Rather the Act only requires that the victim `is willfully transported.'" Wills I at 178. Because the facts supported a finding that Alam was "willfully tran sported" we vacated the district court's order and remanded the case. See United States v. Wills , 234 F.3d 174, 179 (4th Cir. 2000) ( Wills I ). On September 4, 2001, a th ree-week jury trial commenced, in which Wills appeared pro se with two attorneys acting as standby counsel. During the trial, the government introduced transcripts of Wills' telephone conversations with his brother, including the conversation in which Wills referred to the movie, CASINO. When the government sought to introduce the entire movie as an exhibit, the court suggested that the parties attempt to reach a stipulation regarding the

11content of the movie. After the parties were unable to reach a stipulation, the court entered the entire movie into evidence and allowed both parties to play excerpts of the movie for the jury.The government also introduced records of Cingular Wireless, successor to Cellular One, through the testimony of its Asset Protection Manager, Neal Carver. These records showed that on June 17, 1998, a man identifying himself as Edward Short or Ed Short purchasedpre-paid Cellular One service at a Radio Shack located at 1528 Benning Road, N.E., Washington, D.C. The records further indicated that an electronic serial number (ESN) change, or phone change, was made on June 22, 1998 to allow the phone number given to Edward Short to be used with a telephone pr eviously used with another Cellular One account in the name of Christopher Wills. At trial, Carver explained that all cell phones have an ESN that is unique to each and is permanent. ES N is an electronic record number imbedded in the phone by the manufacturer. He further testified that an ESN change occurs when a customer switches telephones on an account while retaining the same telephone number. Once an ESN change is made, the ESN, or phone, previously associated with the telephone number will not work.

Cellular One records documented calls made from Edward Short's phone number to Alam's home tele phone on June 23 and June 24. In addition, the records indicated that three calls were made from Short's phone number to Alam's pager on June 25. At trial, Wills attempted to explain the ESN change by claiming that his telephone began to receive mysterious calls. Notably, Wills, however, did not account for the outgoing calls made from his phone to Alam's home number and pager.During trial, the government argued that there was also no evidence to suggest that Alam's failure to return home was anything but involuntary. The government presented testimony that when Alam left for his interview, he did not give any indication that he would not be returning home. Alam never returned to his job at the Fish Market Restaurant in Old Town Alexandria, Virginia and never collected his paycheck. Alam also took little cash with him and had no credit cards,

12passport, or travel documents. The government presented further evidence that Alam was about to beco me a United States citizen and had no desire to return to Afghanistan. On October 1, 2001, the jury returned a guilty verdict on both the kidnapping count and the interstate stalking count. After a separate penalty hearing on October 4, 2003, the jury recommended a sentenceof life imprisonment without parole on the kidnapping count. The district court sentenced Wills to lif e imprisonment without parole on both counts, to be served concurrently; five years of supervised release on each count to be serv ed concurrently; and a $200 special assessment. This appeal followed.

II.

A. Federal Jurisdiction As an initial matter, Wills argues that the government failed to establish federal jurisdiction b ecause the government did not prove that Alam was "willfully transporte d in interstate commerce" under 18 U.S.C. § 1201(a)(1). 8 In addition, Wills argues that the government failed to prove that Wills or someone acting at his direction traveled in interstate commerce in kidnapping Alam.

____________________________________________________________
8 18 U.S.C. § 1201 provides, in pertinent part: (a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, . . . when — (1) the person is willfully tr ansported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary if the person was alive when the transportation began;

* * * shall be punished by imprisonment for any term of years or for life and, if the death of a person results, shall be punished by death or life imprisonment. 18 U.S.C. § 1201(a) (2000).

13In Wills I , we held that the "willfully transported" element of 18 U.S.C. § 1201(a)(1) did not cont ain an accompaniment requirement and found that "the fact that Wills caused unaccompanied travel over state lines [was] sufficient to confer jurisdiction." Wills I , 234 F.3d at 179. We adhere to our decision in Wills Iand are of opinion that federal jurisdiction has been established. 9

B. Res Judicata, Collateral Estoppel, & Double JeopardyWills argues that the district court dismissed Count One (the kidnapping count) of the indictment in two distinct rulings: (1) a legal ruling that the government had failed to establish federal jurisdiction because Alam drove unaccompanied across state lines, and (2) a factual ruling that the government had failed to establish that Alam had been restrained or held at any point in Virginia prior to his interstate travel. Wills contends that because this court only addressed the district court's ruling on unaccompanied interstate travel, the district court's factual finding on the holding element became final. Thus, Wills argues that relitigation of the kidnapping count was barred bythe district court's prior decision on the holding element. Wills contends that the district court's s ubsequent trial on the kidnapping count constituted double jeopa rdy. We disagree. In dismissing the kidnapping count, the district court explicitly stated that it was accepting as true the allegations as stated in the indictment. The district court then determined that the indictment had failed to establish federal jurisdic tion because the allegations did not state that Alam was not transported in interstate commerce by Wills or by someone acting on his beha lf. In denying the government's motion for reconsideration, the district court stated that the "[d]efendant argues that the indictme nt fails to allege facts sufficient to satisfy other elements such as the requirement that the defendant be held. Because the indictment's fa ilure to satisfy the jurisdictional element is fatal, we do not addr ess these other arguments." See United States v. Christopher Wills , No. 99-396, slip op. at 2 n.1 (E.D. Va. Mar. 17, 2000). Thus, the district court did not make any factual find-

____________________________________________________________
9 Accordingly, we find without merit Wills' claim that the district court erred in failing to dismiss Count One of the indictment (the kidnapping count) for lack of jurisdiction and failure to allege a federal offense.

14ings in dismissing Count One of the indictment. Furthermore, the dismissal for lack of jurisdiction was not an adjudication on the merits or an acquittal. Therefore, the pr inciples of collateral estoppel, res judicata , or double jeopardy are inapp licable and Wills' argument is without merit.

C. VenueWills also contends that the district court was without venue pursuant to 18 U.S.C. § 3237(a) to conduct the trial on the kidnapping count. Wills argues that the kidnapping occurred in Washington, D.C., not in the Eastern District of Virginia, because a kidnapping offense does not begin until the victim is involuntarily seized and held. Wills claims that Alam was not held until he transported himself into Washington, D.C. Kidnapping is a continuing crime which begins the moment that the victim is unlawfully seized, c onfined, inveigled, decoyed, kidnapped, abducted, or carried away. See United States v. RodriguezMoreno , 526 U.S. 275, 281-82 (1999) ("Kidnaping . . . was committed in all of the places that any part of it took place, and venue for the kidnaping charge . . . was appropriate in any of them."); see also United States v. Seals , 130 F.3d 451, 461-63 (D.C. Cir. 1997). Thus, venue was appropriate in the Eastern District of Virginia, where Alam was inveigled and decoyed. Accord ingly, we hold that Wills' lack of venue claim is without merit.

D. Indictment for Interstate Stalking
Also as an initial matter, Wills argues that the district court erredin failing to dismiss Count Two of the indictment (the interstate stalking count) for insufficiency of the alleged facts to support the offense charged. More specifically, Wills clai ms that the facts alleged in the indictment were insufficient to support the fear element of interstate stalking.

This court has held that courts lack authority to review the sufficiency of evidence supporting an i ndictment, even when a mistake was mistakenly made. See United States v. Mills , 995 F.2d 480, 487

15(4th Cir. 1983); see also Costello v. United States , 350 U.S. 359, 363- 64 (1956) ("Petitioner urges that this Court . . . establish a rule permitting defendants to challenge indictments on the ground that they arenot supported by adequate or competent evidence. No persuasive reasons are advanced for establishing such a rule. It would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules."). Furthermore, "[a]n indictment returned by a le gally constituted and unbiased grand jury, . . . if valid on its face, is enough to call for trial of the charges on the merits." Mills , 995 F.2d at 487. Because the indictment tracks the language of 18 U.S.C. § 2261A (the interstate stalking statute) and properly alleges each element of the statute, the indictment is valid on its face. Thus, we hold the district court correctly did not dismiss Count Two of the indictment.

III. Wills raises several challenge s to the district court's evidentiary rulings, each of which we will address individually.

A. Admission of Movie, CASINO, into EvidenceWills argues that the district court erred by allowing the government to play an excerpt from the movie, CASINO. The parties dispute whether Wills objected to the admi ssion of the movie into evidence. The defense maintains that Wills noted timely objections to the admission of the movie while the government contends that Wills failed to object contemporaneously. After a review of the record, we agree with the government that Wills did not contemporaneously object to the admission of the film into evidence. 10 Thus, we review

____________________________________________________________
10 Prior to trial, on Septembe r 4, 2001, Wills filed a motion in limine requesting the court to prohibit the government from using the movie as evidence. The district court stated that the movie was relevant because Wills referred to the movie during a c onversation with his brother. The court suggested that the parties attemp t to reach a stipulation as to thecontent of the movie. After the parties were unable to agree upon a stipulation, the court entered the movie into evidence and noted that half of the jury had already seen the movie. Wills responded, "Thank you."

16the district court's decision for plain error. See United States v. Olano , 507 U.S. 725 (1993). We are of opinion that the district court did not commit error, plain or otherwise. The court ruled that the movie was relevant. This rulingas to relevance was not an abuse of discretion because Wills mentioned CASINO in the taped telephone conversations with his brother,and the movie undoubtedly explained the meaning of the conversation. Thus, there was no error becau se the evidence was relevant and the district court's decision was not an abuse of discretion.

B. Admission of Recorded Telephone Conversations

Wills contends that the dist rict court improperly admitted recorded telephone conversations between Wills and his brother, Michael Wills, and transcripts of those conve rsations. We decided some years ago that such transcripts are admissible. See United States v. Soc'y of Indep. Gasoline Marketers of Am. , 624 F.2d 461, 474 (4th Cir. 1979) (Widener, Circuit Judge, concurring). Wills argues that Michael Wills' recorded statements were h earsay and that admission of thosestatements violated his Sixth Amendment right to confront the witnesses against him. Christopher Wills' own statem ents, which were recorded during those conversations, were admi ssions by a party-opponent and were admissible pursuant to Federal Rule of Evidence 801(d)(2)(A). We agree with the district court, as it held that Michael Wills' statementswere also admissible. They were reasonably required to place Christopher Wills' responses into context. Accordingly, Michael Wills' statements were properly admitted to make Christopher Wills' statements,

____________________________________________________________ Later during the trial, the district court entered the movie into evidence. When the government requested permission to play an excerpt of the movie, Wills' standby counsel, Mr. Shapiro, approached the bench and stated, "I am constrained to do this. But I think that I must put my personal objection on the record to the playing of this tape. I want the record to reflect that it is over my strenuous objection, but Mr. Wills, it is his decision." Hence, Wills did not object to the playing of the movie excerpt.

17so far as they constituted incrimina ting admissions, "intelligible to the jury and recognizable as admissions." United States v. Lemonakis , 485 F.2d 941, 948 (D.C. Cir. 1973). Thus, the district court did not err by admitting the tapes and transcripts.

C. Admission of Cell Phone Records Wills also argues that the r ecords of Cingular Wireless, formerly known as Cellular One, were e rroneously admitted as business records because they contained information provided by Radio Shack sales representatives. Wills claims thatthe district court erred in ruling that the records were reliable b ecause the court failed to determinethe truthfulness of the information provided by Radio Shack to Cellular One pursuant to Federal Rule of Evidence 803(6). 11
We are of opinion that the method of compilation of the records does not indicate a lack of trustworthiness. Cellular One's Asset Protection Manager testified that Cellula r One offered its services to the public through various distribution channels, including retail centers like Radio Shack. The retail cente rs must transmit the cell phone's unique ESN to Cellular One in order for the customer to receive Cellular One service. T hus, the information submitted by Radio Shack to Cellular One occurred in the regular course of business and does not show a lack of trustworthiness, either in source of preparation or in method of preparation. Therefore, the district court did not err in admitting the documents as business records.

____________________________________________________________
11 Fed. R. Evid. 803(6) provides an exception to the hearsay rule: A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from info rmation transmitted by a person with knowledge, if kept in the course of a regularly conducted business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness . . . unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

18IV. Wills asserts that the district court's exclusion of certain testimony and exhibits offered by Wills prevented Wills from presenting his defense and effectively representing himself.

A. Photo Spread Four days before the preliminary hearing in the Virginia court at which Alam identified Wills as the man whom he ha d discovered burglarizing his home, Fairfax County Police Detective Michael Feightner showed Alam a six picture photo spread containing Wills' picture. Alam identified Wills from this spr ead as the burglar. On February 11, 2000, a motions hearing was held in the district court, at which Detective Feightner testified that during the photo lineup prior to the Virginia preliminary hearing, he had told Alam that Wills' picture was among those displayed. The district court denied Wills' motionto suppress the photo identification. At trial, the district court reiterated that any suggestive procedures used in the photo identification were irrelevant because Alam had identified Wills later at the preliminary hearing. The district court did not permit Wills to question Detective Feightner about the photo id entification or his investigation of the burglary stating that both issues were irrelevant. Wills now argues that he should have been ab le to examine Detective Feightnerabout the photo identification because it was relevant to Wills' position that he was not the burglar. We agree with the district court in its decision that whether Wills was the actual burglar was not the i ssue in the trial in the districtcourt. The government did not offer the out-of-court photo identification into evidence at the trial, ra ther it relied upon Alam's identification of Wills at the preliminary hearing to support its theory of motive. Therefore, any suggestive measures employed by Detective Feightner at the earlier photo identification were irrelevant, and the district court did not abuse its discretion in excluding testimony related to the photo identification. The issue was not whether Wills was the burglar, but whether Alam had identified him as such.

B. Testimony that Alam was not HeldWills further asserts that he was denied his right to selfrepresentation when the districtcourt prevented Wills from cross19examining government witnesses as to whether Alam was held prior to leaving for his interview or whet her Alam was forced to go to the interview. The district court corr ectly determined that based upon this court's decision in Wills I and the government's theory that Alam was inveigled, the use of force or being held prior to interstate transportation was irrelevant.

C. Wills' Affidavit Wills further challenges the di strict court's refusal to allow into evidence a handwritten affidav it signed by Wills on November 30, 1999, which stated that he would not speak to any other prisoners about his case. Wills attempted to o ffer this affidav it into evidence to corroborate his testimony that he ne ver spoke to James Black during his arraignment. The district court determined that the affidavit was a "preemptive strike" and did not have any probative value. We are of opinion that the district court properly exercised its discretion in refusing to admit the a ffidavit into evidence.

D. Tape Recording During its case-in-chief, the government offered a portion of a recorded conversation from Ma y 25, 1998 between Wills and his brother, Michael, of which ther e was no transcript, in which Wills stated that, "I ain't going back to jail." Wills now claims that this statement is at least partially in accurate. The judge correctly permitted Wills to play the tape and inst ructed the jury as follows: I've already instructed th em that it's their hearing that must be what guides their understanding of the transcript — of the tape. And you can argue that a particular transcript is not accurate. We don't need to h ear testimony to that effect. This was the correct ruling.

E. Closing Argument Wills made several objections during the government's closingargument regarding the government's characterization of the evi20dence. The district court instructed Wills not to so object and told Wills that he could present his vers ion of the evidence during his own closing argument. Wills now argues that he was denied his right to his defense and to effective self-representation. We have held that "[t]he district court is afforded broad discretion in controlling closing arguments and is only to be reversed when there is a clear abuse of its discretion. `A reversal may be required where counsel is restricted within unreasonable bounds.'" United States v. Rhynes , 196 F.3d 207, 236 (4th Cir. 1999). The district court informed Wills that he would be given the opportunity during his ownclosing argument to present his own counter arguments to the government's interpretation of the evidence. Thus, the court did not place unreasonable restrictions on Wills by preventing him from objectingduring the government's closing arguments and did not abuse its discretion.

F. Interview of WitnessesWills further argues that he was denied his right to selfrepresentation because he was unabl e to interview defense witnesses prior to their testifying at his tria l. When Wills raised this argument to the district court, the court responded that because Wills was in custody he had to defend his case within the security arrangements of the United States Marshal and the institution in which he was incarcerated. It properly called to Wills' attention that the reason was that he had chosen to represent himself. We find no error in that decision of the district court.

V. Wills raises various challenges to the district court's jury instructions, each of which we will addre ss individually. In reviewing jury instructions, we "accord the district court much discretion and will not reverse provided that the instructi ons, taken as a whole, adequately state the controlling law." Teague v. Bakker , 35 F.3d 978, 985 (4th Cir. 1994).

A. Willfully Transported Element of Kidnapping Statute Wills argues that the district c ourt incorrectly inst ructed the jury on the "willfully transported in inte rstate commerce" element of 18

21U.S.C. § 1201(a)(1). More specifica lly, Wills argues that in order for Wills to have transported Alam ininterstate commerce, the kidnapping statute requires that Wills "have taken or carried Alam across state lines or have been in actua l control or command of Alam's car or Alam's free volition."

In Wills I , we held that unaccompanied travel across state lines may satisfy the "willfully transported" element of 18 U.S.C. § 1201(a)(1). The district court instructed the jury that each element of the kidnapping statute must be proven be yond a reasonable doubt and provided the following instruction on the "w illfully transported" element: To prove that the defendantwillfully transported the victim in interstate commerce, the government is not requiredto prove that the defendant actually accompanied or physically transported or provided for the physical transportation of the victim; in other words, a defendant willfully transports a victim in interstate commerce if the defendant willfully causes the victim to trav el or even transport himself unaccompanied across state lines. We are of opinion that this instruction adequately stated the controlling law as interpreted by our decision in Wills I

. 12

B. Unlawful Restraint and Holding Element of Kidnapping Statute

Wills also asserts that the dist rict court erroneously instructed the jury on the unlawful restraint and holding element of § 1201(a)(1) byfailing to instruct the jury that the government had the burden of proving beyond a reasonable doubt that Alam was unlawfully restrained or held prior to being transported over state lines. As to the unlawful restraint and holding element, the district court instructed the ju ry as follows:

____________________________________________________________
12 Wills further contends that due to th e district court's jury instruction on the willfully transported element of § 1201(a)(1), th e court constructively and impermissibly amended the indictment. We hold this claim is without merit.

22To hold means to detain, seize, or confine a person in some manner against that person's will.

* * * The government must prove beyond a reasonable doubt that the defendant held his victim for some benefit and that the defendant willfully transported the victim in interstate commerce. It is not necessary that the government prove that the holding occurred prior to the transportation in interstate commerce. Indeed, in this case, the government has alleged that the transporta tion in interstate commerce occurred prior to the victim's being held. We are of opinion that this instruc tion is consistent with controlling law. The statute has no requirement of prior restraint. "Nothing in the policy [disregard of State borders in pursuit] justifies rewarding the kidnapper simply because he is i ngenious enough to conceal his true motive, until he is able to transport . . . [his victim] into another jurisdiction." United States v. Hughes , 716 F.2d 234, 239 (4th Cir. 1983). We also hold the instruction did not amend the indictment.

C. Interstate Stalking Wills also argues that the distri ct court erred in instructing the juryon the interstate stalking count by failing to instruct that the government must prove that Wills traveledfrom Washington, D.C., to Fairfax County, Virginia and placed Alam in fear in Virginia as a result of Wills' acts in Virginia. Wills argue s that the following instructions allowed the jury to find that Alam was placed in fear as a result of Alam's own travel to Washington, D.C., not as a result of Wills' travel from Washington, D.C., to Fairfax County, Virginia. Wills further argues that the instructions allowed him to be convicted of interstate stalking based on interstate travel outside of the time frame specified in the indictment. The c ourt instructed th e jury as follows on the interstate stalking count: Count 2 charges that between on or about June 15, 1998, and on or about June 25, 1998, the defendant, Christopher

23Andaryl Wills, did knowingly travel across a state line, that is, from Washington, D.C., to Fairfax County, Virginia, in the Eastern District of Virginia, with the intent to injure and harass Zabiullah Alam and in the course of and as a result of such travel, place Mr. Alam in reasonable fear of deathand serious bodily injury, the actions of Christopher Andaryl Wills resulting in the death of Zabiullah Alam, in violation of Title 18, United States Code, Sections 2261 [A], 2261(b)(1), and Section 2.

* * * Section 2261[A] of Title 18 of the United States Code provides in pertinent part that whoever travels in interstate commerce with the intent to injure or harass and in the course of or as a result of su ch travel places that person in reasonable fear of the death of or serious bodily injury to that person shall be guilty of an offense against the United States.

There are three essential el ements to the crime of interstate stalking. First, the government must prove beyond areasonable doubt that the defendant, Christopher Wills, traveled in interstate commerce; Two, they must prove beyond a reasonable doubt that such interstate travel was with the intent to injure or harass Mr. Alam; Three, they must prove beyond a reasonable doubt that during or after such travel, the defendant, Christopher Wills, committed an act of placing Mr. Alam in reasonable fear of death or serious bodily injury. Wills also challenges the supplemental instruction given in response to the following jury ques tion submitted to the court during jury deliberations: As to Count 2, element 3, we have this question: Did Mr. Alam himself have to experience or be aware of his death

24or bodily injury? For example, if Mr. Alam was shot withoutany warning and died instantly, would that preclude a finding of reasonable fear of death or bodily injury? The district court responded to the jury as follows:The question is, "Did Mr. Alam himself have to experience or be aware of the fear of his death or bodily injury?" The answer is yes. The government must prove that beyonda reasonable doubt to satisfy the third element of [the stalking] count. Then you asked for an example: "If Mr. Alam was shot without any warning and died instantly, would that preclude a finding of reasonable fear of death or bodily injury?" I can't really comment on a hypothetical other than to tell you again that the burden is on the government to prove beyond a reasonable doubt that at some point, the victim - the alleged victim became — was reasonably fearful of death or serious bodily injury. If the evidence is not there to support that, then that element has not been met.Wills filed a written objection to the instructions on the fear element and then renewed his written obj ections prior to the original jury instructions. However, Wills faile d to object to the supplementalinstruction on fear. Thus, we review his objections to the supplemental instruction for plain error. See United States v. Nicolaou , 180 F.3d 565, 569 (4th Cir. 1999). The instructions clearly indi cated the period of the alleged travel and twice stated that the defendant , traveled in interstate commerce from Washington, D.C. to Virginia. Furthermore, the jury instruction tracks the language of both the interstate stalking statute and of the indictment. 13 Neither the original jury instruction nor the supplemen-

____________________________________________________________
13 Accordingly, we find Wills' argument th at the district court constructively and impermissibly amended the indictment by instructing the jury that it need only find that Wills travel ed in interstate commerce, rather than that Wills traveled from Washi ngton, D.C., to Virginia and placed Alam in reasonable fear of death or serious bodily injury without merit.

25tal instruction suggest that the interstate travel element could be satisfied by the victim's travel or by Wills' travel outside the alleged time period. Thus, we are of opinion that neither the original instruction, nor the supplemental instruction, was error, plain or otherwise. We also decide that the instruction did not amend the indictment.

D. Allen Charge 14

Wills further contends that th e district court coerced the verdict as to the interstate stalking count by giving an Allen charge after the jury informed the court that it had reach ed a decision as to the kidnapping count but was deadlocked as to the fear element of the interstate stalking count. We review the court's decision to provide an Allen charge and the content of that charge for an abuse of discretion. See United States v. Cropp , 127 F.3d 354, 359-60 (4th Cir. 1997). We find that the district court properly gave the Allen charge after being informed that the jurors had reached an impasse in their deliberations. See Cropp , 127 F.3d 359-60. In additi on, the charge given properly instructed those jurors in the minority to reconsider the majority's views and those in the majority to reconsider the minority's views. See United States v. Burgos , 55 F.3d 933, 937-38 (4th Cir. 1995). The Allen charge further instructed the jurors that they should not change their opinions solely to reach an unanimous decision. Thus, the charge did not in anyway request the jurors to surrender their conscientious convictions. See Burgos , 55 F.3d at 939 ("The most egregious mistake that can be made in the context of an Allencharge is for the district court to suggest, in any way, that jurors surrender their conscientious convictions."). Accordingly, the district court did not err in giving an Allen charge or in the content of the charge.

E. Aiding & Abetting Instruction Wills argues that the district court erroneously instructed the jury under 18 U.S.C. § 2(a) (aiding and abetting) although it was not charged in the indictment. He argues that the court's instructions con-

____________________________________________________________
14 Allen v. United States , 164 U.S. 492 (1896).

26structively amended the indictment because the government's theory of the case rested on the causation language of 18 U.S.C. § 2(b) and not under the aiding and abe tting language of § 2(a). 15
Both the kidnapping and the interstate stalking counts of the indictment expressly charged a violation of18 U.S.C. § 2, and neither indicated a specific subsection of that statute. Therefore, we are of opinion that the district court's instruction under § 2(a) (aiding andabetting) did not amount to a constructive amendment of the indictment. In all events, a conviction under 18 U.S.C. § 2 may be obtained although the defendant was not indicted under § 2. United States v. Duke , 409 F.2d 670 (4th Cir. 1969).

VI.

Wills next contends that th e evidence was insufficient to convict him of interstate kidnapping resulti ng in death in violation of 18 U.S.C. § 1201(a)(1). In reviewing a conviction for sufficiency of the evidence, "[t]he verdict of a jury mu st be sustained if there is substantial evidence, taking the view most favorable to the government, to support it." Glasser v. United States , 315 U.S. 60, 80 (1942). To establish a violation of 18 U.S.C. § 1201(a)(1), the government must show, beyond a reasonable doubt that, the defendant (1) unlawfully seized, confined, inveigled, decoye d, kidnapped, abducted, or carried away the victim; (2) held the victim for ransom, reward, or otherwise; and (3) willfully transported the vi ctim in interstate commerce. See Wills I , 234 F.3d 174, 176-77 (4th Cir. 2000).

Wills asserts that the evidence was insufficient to prove that he kidnapped Alam or that the kidnapping resulted in Alam's death. Wills

____________________________________________________________
15 18 U.S.C. § 2 provides: (a) Whoever commits an offens e against the United States or aids, abets, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. 18 U.S.C. § 2 (2000).

27argues that, at most, the evidence was only sufficient to convict him of conspiracy to kidnap. Giving the job fliers to Alam, arranging the job interview, and arranging th e false cell phone number and the phone calls to Alam are certainly evidence of decoying and inveiglement. Wills' expressed intent to elim inate Alam as a witness to Wills' burglary is evidence of the reason for Alam's kidnapping. Alam's travel from Fairfax County to the District of Columbia is a sufficient jurisdictional connection. Alam left his job unpaid, he made no travel plans, he was about to become a United States citizen, his identification of Wills as a burglar, and Wills' conversations with his brother and Black all are evidence to support the finding of the jury that Alam died as a result of being kidnapped. The government presented evidence that Wills inveigled and decoyed Alam into meeting him for a job interview by leaving fliers at Alam's home on June 18, 1998 a nd June 19, 1998. Wills discussed his plan with his brother shortly after the preliminary hearing, stating that he would have to use "some tr ickery." On June 18, the same day that the first flier was left at Al am's house, Wills informed his brother that he had put "Plan A" into ac tion. Then on June 19, Wills alluded to the fliers in telephone conversations with his brother stating, "I already got the fliers out and everything, so I'm just waiting, you know, for them to get it and call, and, I ain't got no calls yet, man." The government also pres ented evidence that the phone number listed on the fliers contained a num ber which was directly linked to Wills. Reginald Johnson, a sales repr esentative at Radio Shack, identified Wills as the man who had purch ased pre-paid cellular service for a pre-existing cell phone using the name "Ed Short" on or about June 17, 1998. Johnson also testifie d that on or about June 18, 1998, Wills returned to the Radio Shack complaining that the cell phone did not function properly. Johnson's te stimony is consistent with Wills' June 19, 1998 conversation with his brother, during which Wills indicated that he had been at Radio Shack and that his cell phone had not been functioning properly. Also, on or about June 19, a handwritten note dated "6/19/98" and listing th e same telephone number was left at Alam's apartment which read, "Were [sic] sorry that our phones were down yesterday 6/18/98 Please! Try our line again. Were [sic] open 7 days a week. Jobs!!" Neal Carver, Cingular Wireless' Asset Protection Manager, testified that Cellular One's records indicated

28that on June 22, 1998 the cell phone number given to Ed Short was transferred to a phone previously used by Christopher Wills. The government also presen ted evidence that Wills and Alam had been speaking via telephone. Cellular One records revealed that calls were placed from the phone number linked to Wills to Alam's home phone number on June 23 and June 24, and to Alam's pager three times on June 25. In addition, Al am's cousin and his friend, Ali Muradi, testified that a man name d Felliece had called Alam regarding the grounds keeping job and gave the number advertised on the fliers as his own. Muradi further testified that Alam was scheduled to meet Felliece's secretary at Union Station. The government presented evidence that Felliece was also the name of a man who called the Augusta Correctional Center on tw o occasions claiming to be an attorney for Michael Wills and that this man gave Christopher Wills' address and telephone number as hi s own. Thus, we are of opinion that the government presented suffi cient evidence for a jury to conclude that Wills inveigled Alam into traveling from Virginia to Washington, D.C.

Wills further contends that the government presented insufficient evidence for the jury to conclude that Wills held and killed Alam. At oral argument, the defense argued th at there was a lack of evidence showing that Alam was held for an appreciable period. See Chatwin v. United States , 326 U.S. 455, 460 (1946). No instruction was requested or given on appreciable time nor did the defense file a motion for acquittal based on appreciab le time. Thus, this claim might well be defaulted. However, there is sufficient evid ence in the case to show that an appreciable period elapsed between the time when Alam was decoyed and inveigled and the point at which Alam was determined to be missing.Wills argues that the government failed to present any direct evidence of Alam's death or that Wills murdered Alam. However, the government did present direct evidence in the form of James Black's testimony that Wills told him, "they'll never find the body," and Alonzo Nichols' testimony that he overheard Wills telling Black, "They can't give me the death penalty because they ain't never going to find the body." See United States v. Russell , 971 F.2d 1098, 1110

29n.24 (4th Cir. 1992) ("Confessions and eyewitness or ear-witness testimony, of course, are forms of direct evidence . . . ."). Nevertheless, we have held that when a victim's body has not beenfound the corpus delicti may be established exclusively by circumstantial evidence. See Russell , 971 F.2d at 1110 n.24. The government presented evidence that Wills told hi s brother, "I'm trying to get this dude, man. If I don't my ass is gr ass." Furthermore, the government presented evidence that although Alam's car was found in a Maryland apartment complex parking lot on June 28, 1998, Alam has not beenseen since June 25, 1998, when he was given a citation for not wearing his seatbelt. Prior to leaving his Virginia apartment on June 25, Alam had told his family and friends that he was going to meet Mr. Felliece's secretary at Union Station for a job interview for the grounds keeping position advertised in the fliers. Wills argues that the governme nt's evidence is insufficient because it fails to show that Wills, or some one acting on his behalf, ever met with Alam. Wills also contends th at the evidence does not indicatethat Alam ever went to Union Station. However, the government presented evidence that the day after Alam was last seen, Wills spoke to his brother via telephone and answered in the affirmative when his brother asked, "You handle the busin ess?" and "Everything taken care of?" Wills also told his brother, "I was doing a Casino joint," referring to the movie, CASINO, in which a portion of the movie dealt with the elimination of potential witnesses. Wills later told his brother that he "handle[d] his business" and that his "people" were "on the scene, but they don't know disposal." Wills further contends that Alam may have voluntarily vanished and may not wish to contact his family or friends. The government, however, presented testimony that Alam gave no indication that he did not intend to return home. Al am did not take any personal items with him and he took very little cas h. He had no credit cards, no passport, and no travel documents. Furthermore, he never returned to his job at the Fish Market, nor did he pick up his paycheck. Finally, the police checked local morgues, othe r police agencies and police computer files, and entered Alam's na me into the national crime database in an effort to locate him but th ese efforts were unsuccessful. After viewing this evidence in the light most favorable to the government,

30we are of opinion there was suffici ent and substantial evidence for a jury to conclude that Wills held and murdered Alam.We therefore are of opinion that the government presented substantial and sufficient evidence for the jury to convict Wills of kidnapping in violation of 18 U.S.C. § 1201(a)(1).

VII.

Wills also claims that the government presented insufficient evidence to convict him of interstate stalking resulting in death in violation of 18 U.S.C. § 2261A. Again, in reviewing a convi ction for the sufficiency of evidence "[t]he verdict of a jury must be su stained if there is substantial evidence, taking the view most favorable to the government, to support it." Glasser v. United States , 315 U.S. 60, 80 (1942). To establish a violation of 18 U.S.C. § 2261A, the government must show, beyond a reasonable doubt, that the defendant (1) traveled across State lines; (2) with the intent to injure or harass another person; and (3) in the course of, or as a result of, such travel, placed that person in reasonable fear of death or of serious bodily injury. See 18 U.S.C. § 2261A. Because we have already held th at the government presented sufficient evidence from whic h a jury could conclude that Wills killed Alam, we need not address that issu e again, except to say that there is substantial evidence to support th e verdict of the jury that Alam died as a result of being stalked. Wills argues that the government failed to establish the interstate travel requirement of § 2261A becau se, he contends, it presented evidence that Alam, not Wills, traveled across state lines. However, the government presented evidence that the interstate stalking began on June 15, 1998 when Wills traveled fro m Washington, D.C., to FairfaxCounty, Virginia, for the preliminary hearing in Fairfax County General District Court in which Alam identified Wills as the man whom he had discovered burglar izing his home. Wills later told his brother that his "peoples" were with him "undercover" at the preliminary hearing to watch Alam and to find out what type of car Alam drove. The government also presented evidence that Wills traveled to Alam's apartment to leave fliers on June 17, 1998 and June 18, 1998,

31which is consistent with Wills' statem ents to his brother, "I already got the fliers out and everything . . ." and that he had put "Plan A" into action. Thus, we are of opini on that there was sufficient evidence for the jury to conclude that Wills traveled from his home in Washington, D.C., to Virginia.Next we must determine whether the government presented sufficient evidence from whic h a jury could find that Wills intended to injure or harass Alam. 16 After the preliminary hearing, Wills described to his brother how Alam had identified him at the hearing and stated, "I ain't got time to leave it at that." The government also presented other statements made by Wills to his brother, including the statement, "I'm trying to get this dude, man. If I don't my ass is grass." In addition, after the fliers were left at Alam's apartment, Wills told his brother, "I already got the fliers out and everything, so I'm just waiting, you know for them to get it and call. . . I'm trying to, you know, figure out how to go at him." Wills "Doing a Casino" also at the very least inferred harmto Alam. After viewing this evidence in the light most favorable to the government, we find that there was substantial and suffici ent evidence from which the jury could have concluded that Wills in tended to harm or harass Alam. Wills contends that "[t]he r ecord is completely devoid of any evidence that Alam was placed in fear of death or serious bodily injury." In response, the government argues that when viewed as a whole, Wills' statements to his brother on June 26 and 27, particularly the references to CASINO, and Wills' tr ial testimony, was sufficient evidence from which a jury could reas onably have concluded that Alam experienced fear prior to his death. The government presented ev idence that Alam was to meet Felliece's secretary at Union Station and that Felliece was a name which had been used by Christopher Wills in the past. The government argues that the jury could have r easonably concluded that after Alam met Felliece's secretary, Alam was taken by an accomplice to another location. The government contends that this theory is supported by statements Wills made to his brother, after Alam was missing: "I ain't

____________________________________________________________
16 On appeal, Wills has not raised a specific challenge to the sufficiency of the evidence supporting his intent to injure or harass Alam.

32had to show my face at all, peri od" and his "people" were "on the scene, but they don't know disposal." Wills also told his brother, "I'm gonna tell you some things . . . But you know I can't say it on the phone, `cause it pertains to someth ing, you know." Wills then referred to the movie, CASINO, saying, "I was doing a Casino joint, right?" In the final part of CASINO, which th e government played in court, two mobsters are beaten, stripped of their clothing, and buried alive in shallow graves in a remote cornfield. The government argues that it was reasonable for the jury to conc lude that Wills had killed Alam in a similar manner and could have in ferred that the phrase "sweating ass naked" was a description of Alam, in fear, prior to his death. Thegovernment further argues that it was reasonable for a jury to conclude from its observations of Wills ' demeanor on the stand while he testified and from hearing his reco rded conversations that Wills had placed Alam in fear of death or of serious bodily injury. We agree with the government and conclude that the government presented substantial and sufficient evidence fro m which a jury could infer that Wills had placed Alam in fear of d eath or of serious bodily injury. 17

VIII.

Wills raises three additional i ssues relating to the element of death as it relates to kidnapping and interstate stalking. Wills first contends that the indictment was fatally defective because it failed to allege the time and place of Alam's death as well as the fatal blow that caused his death. In support of his claim, Wills relies on the common law year and a day rule, which requires that the

____________________________________________________________
17 Wills also argues that the government failed to establish venue in the Eastern District of Virginia for the interstate stalking count because it did not present any evidence that Alam was placed in fear while he was in Fairfax County, Virginia on any of the days that Wills was alleged to have traveled to Virginia. Wills ar gues that stalking does not begin until a person is placed in fear of death or of serious bodily injury. Therefore, he argues that venue in the Eastern Di strict of Virginia was inappropriate because Alam was not placed in fear until he traveled to Washington, D.C. We disagree. We are of opini on that venue was proper in both the Eastern District of Virginia, where Wills left fliers at Alam's apartment, and in the District of District of Columbia.

33victim's death occur within a year and a day of the alleged fatal stroke, blow, or injury perpetrated by the defendant. See United States v. Chase , 18 F.3d 1166, 1169 (4th Cir. 1993).Both counts of the indictment allege that the kidnapping and stalking offenses, including Alam's resulting death, occurred between June 15, 1998 and June 25, 1998. Thus, we conclude that the indictment was sufficient to provide Wills with fair notice of his alleged criminal conduct and that it complied with the year and a day rule.
Second, Wills asserts the court's instructions and findings at sentencing as well as the government's arguments and presentment of evidence constructively amended the indictment to charge Wills with the premeditated, intentional, cap ital murder of Alam. Wills claims that the indictment did not charge premeditated, intentional, or capital murder of Alam because it did not allege how Alam died nor did it allege a fatal stroke perpetrated by Wills.We conclude that the jury instructions and the government's evidence did not impermissibly broa den the bases for conviction beyond those charged in the indictment. See United States v. Randall , 171 F.3d 195, 203 (4th Cir. 1999). The indictment explicitly charged Wills with the kidnapping and inters tate stalking of Alam which resulted in Alam's death. The evidence presented by the government was relevant to the elements of th e charged offenses. Furthermore, as to both counts of the indictment the court instructed the jury that it "must determine whether Zabiullah Alam is dead . . . and if so, whether his death resulted from the willful and intentional conduct ofthe defendant." We are of opinion that these instructions did not constructively amend the indictment. Therefore, we find that Wills' argument lacks merit. Finally, Wills argues that the district court erroneously instructedthe jury that Alam's death could be proven by circumstantial evidence. In reviewing the adequacy of the instructions, we "accord the district court much discretion and will not reverse provided that the instructions, taken as a whole, ad equately state the controlling law." Teague v. Bakker , 35 F.3d 978, 985 (4th Cir. 1994). As we have already stated, we have held that when a victim's body has not been found "it is well settled that the corpus delicti in general,

34and the victim's death, in particul ar, may be established exclusively by circumstantial evidence." United States v. Russell , 971 F.2d 1098,1110 & 1110 n.24 (4th Cir. 1992). Hence, the district court's instruction stated the controlling law in this circuit and the court did not err.

IX.

A. The government having gi ven the notice under 18 U.S.C. § 3593 that it would seek the death penalty on the kidnapping charge, the case was submitted to the jury on speci al verdict of two parts. To the question "Has the government proven beyond a reasonable doubt that . . . Wills kidnapped Zabiullah Alam?" the jury answered "Yes." To the second question "Has the gove rnment proven beyond a reasonable doubt that Zabiullah Alam died as a result of being kidnapped?" the jury answered "Yes."On a day following, the court conducted a special sentencing hearing with the same judge and the same jury, pursuant to 18 U.S.C. § 3593. The sentencing hearing also was submitted to the jury by way of special verdict, obviously prepar ed with care, in which the jury answered 25 questions with respectto both aggravating and mitigating factors and recommended that Wills be sentenced to life imprisonment without the possibility of release. The only objection made to the sentencing on the kidnapping count is that the court erred in applying a cross reference in the Sentencing Guidelines of § 2A1.1 for first-degree murder and a base offense level of 43. Coupled with that, the claim is that the indictment is defective for failing to elect any facts or factors establishing the element of Alam's murder or death.The Guideline for kidnapping, however, is § 2A4.1 which, in subsection (c) provides if the victim was killed under circumstances that would constitute murder under § 1111, then the first-degree murder Guideline should be applied. The special verdict form on the merits provided that Alam "died as a resu lt of being kidnapped," and the special verdict on punishment provided th at "WILLS intentionally partic35ipated in an act of kidnapping, contemplating that the life of Zabiullah Alam would be taken and/or intendi ng that lethal force would be used in connection with the kidnapping. " Another statutory aggravating factor found was that "WILLS committed the kidnapping offense after substantial planning and premeditation to cause the death of Zabiullah Alam." These facts cer tainly justify the reference to § 2A1.1, the first-degree murder Guideline. The claim that the various aggravating factors had to be alleged in the indictment is not required by Ring v. Arizona , 536 U.S. 584 (2002) which does require, however, that they be submitted to the jury, as they were in this case. The district court correctly followed the applicable statutes and Sentencing Guidelines. In all events, the government correctly claims that a life sentence was required by the statute, without reference to the Sentencing Guidelines, because th e jury did not recommend the death sentence. Section 1201(a)(5) in such a case requires punishment to be "by death or life imprisonment."

B. The stalking conviction was also submitted to the jury by way of special verdict on the merits and was returned that the government had "proven beyond a reasonable doubt that . . . Wills, stalked Zabiullah Alam" and that the government had "proven beyond a reasonabledoubt that Zabiullah Alam died as a result of being stalked." The parties are agreed that the offense level under the Sentencing Guidelines for stalking was 43. One of the jury's answers on the special verdict form as to kidnapping was that Wills intentionally par ticipated in the act of kidnapping,and the district court found "The facts of this case established the premeditated, deliberate, and malici ous planning of kidnapping and killing of the victim." Thus, the district court was well within its discretion in sentencing Wills to life imprisonment under § 2261(b)(1) which provides for a sentence of "life or any term of years, if death of the victim results ." So far as sentencing for stalking may be considered to be an ame ndment to the indictment, it is likewise without merit.

36The judgment of the district court is accordingly

AFFIRMED

. 18

____________________________________________________________
18 Any claims of error we may have not mentioned with particularity have been considered and are likewise without merit.

37