ROBERT M. PARKER, Circuit Judge:
Appellant Damon Causey appeals his convictions and resulting life sentence for violation 18 U.S.C. § 241, conspiracy [411]*411against civil rights and 18 U.S.C. § 242, deprivation of rights under color of law. Appellants Paul Hardy and Len Davis appeal their respective convictions and death sentences for violation of 18 U.S.C. § 241, conspiracy against civil rights, 18 U.S.C. § 242, deprivation of rights under color of law and 18 U.S.C. § 1512(a)(1)(c), witness tampering.
We affirm Causey’s convictions and sentence. We reverse Hardy and Davis’s convictions for witness tampering, affirm their convictions for violation of §§ 241 and 242, vacate their death sentences and remand their cases to the district court for resen-tencing.
1. FACTS AND PROCEDURAL HISTORY
This is a direct appeal from convictions arising from the execution-style murder of Kim Marie Groves. Davis, a New Orleans police officer, targeted Groves because she filed a complaint against Davis with the Internal Affairs Division (“IAD”) of the New Orleans Police Department alleging that he engaged in police brutality. Davis had a relationship with Hardy, a New Orleans drug dealer, in which Davis exchanged police protection for favors. Davis recruited Hardy and Hardy’s associate Causey to kill Groves. Davis, Hardy and Causey planned the murder and subsequent coverup. Hardy was the trigger-man who killed Groves.
Davis, Hardy and Causey were charged by indictment with conspiracy to injure, oppress, threaten and intimidate Groves and another individual in the right to be free from the use of unreasonable force by one acting under color of law and in the right to provide information to law enforcement authorities about a federal crime, alleging eight overt acts in furtherance of the conspiracy (Count 1, alleging violation of 18 U.S.C. § 241); with the substantive violation of Groves’ civil rights (Count 2, alleging violation of 18 U.S.C. § 242 and 2); and with killing Groves with the intent to prevent her from communicating information to a federal law enforcement officer relating to the commission of a federal offense (Count 8, alleging violation of 18 U.S.C. §§ 1512(a)(1)(C) and 2). The Government, in accordance with the Federal Death Penalty Act of 1994 (FDPA), filed a Notice of Intent to Seek the Death Penalty against Davis and Hardy. See 18 U.S.C. § 3593(a).
Trial began on April 8, 1996. The evidence included recorded telephone conversations among the defendants before and after the murder, during which they planned and attempted to hide their involvement with the crime. The recorded interceptions of Davis’s cellular phone conversations were obtained pursuant to a court-authorized investigation of a suspected drug protection racket run by Davis and other corrupt New Orleans police officers. The context of and predicate for the tapes were established by testimony from Sammie Williams, Davis’s police partner who was present in the police car during many of the taped conversations. Steve Jackson, who drove the getaway car for Hardy, also testified for the Government.
On April 24, 1996, the jury returned a verdict of guilty on all three counts against Davis and Hardy. Causey was found guilty on Counts 1 and 2. The jury could not reach a verdict and the district court declared a mistrial on Count 3 as to Cau-sey.
On April 25, 1996, sentencing hearings required by the FDPA for Davis and Hardy began in front of the same jury which had heard the guilt phase of the trial. Davis refused to participate in or attend the hearings. On the Government’s suggestion, both Davis and Hardy were examined by a psychiatrist, who concluded that both were competent to proceed.
The first part of the penalty phase required the jury to make findings on intent and on the statutory aggravating factors alleged against Davis and Hardy. No new evidence was taken during this part of the hearing. The Government re-introduced [412]*412all the evidence admitted during the guilt phase. The jury found that Davis intentionally participated in an act, contemplating that the life of a person would be taken or that lethal force would be used, and the victim died as a direct result of his act, pursuant to the factor set out at 18 U.S.C. § 3591(a)(2)(C). The jury similarly found that Hardy intentionally killed his victim, thus satisfying the intent element described at 18 U.S.C. § 3591(a)(2)(A). The jury also found that Davis and Hardy committed the offense after substantial planning and premeditation, consistent with the statutory aggravating factor set out at 18 U.S.C. § 3592(c)(9). The jury, however, could not reach a unanimous finding as to the other statutory aggravating factor alleged against Davis and Hardy, involving pecuniary gain.
The second portion of the penalty hearing, which focused on non-statutory aggravation and mitigation, proceeded seriatim. On April 26, 1996, the jury returned its finding that Davis used his position as a police officer to affirmatively participate in conduct that seriously jeopardized the health and safety of other persons and that Davis posed a threat of future dangerousness to the lives and safety of other persons, recommending a sentence of death.
The second half of Hardy’s penalty phase began two days later, on April 29, 1996. On May 1, 1996, the jury found the non-statutory aggravators that he committed or participated in additional violent acts and that he poses a threat of future dangerousness to the lives and safety of others. Additionally, four jurors found the mitigating factor that Hardy was abandoned by his natural father and had no suitable male figure in his life; two jurors found that Hardy and his family lived in an abnormally violent environment; all twelve jurors found that Hardy was abused and subjected to violence during his formative years and that he had been traumatized by the death of family members and friends. Nonetheless, the jury unanimously found beyond a reasonable doubt that the aggravating factors sufficiently outweighed any mitigation to justify a sentence of death.
Davis and Hardy were each sentenced on November 6, 1996, to concurrent death penalties as to all three counts of the third superseding indictment. On November 27, 1996, Causey was sentenced to two concurrent life terms. All three defendants filed timely notices of appeal, which are consolidated before this court.
2. JURY SELECTION
Causey, Hardy and Davis allege that the Government exercised its peremptory strikes in a discriminatory manner, so as to exclude African-Americans, particularly African-American females, from the jury.
All three defendants are African-American males, and the victim was an African-American female. There were seventy individuals left in the jury pool after challenges for cause. The Government was allowed 24 peremptory strikes and the defendants, collectively, 26. The Government used nine of its peremptory strikes to challenge African-American females and two to challenge African-American males. One African-American female was seated on the twelve-member petit jury. Of the four alternates selected, three were African-Americans (one male, two females) and one was a white male.
After the jury was seated, the defendants asserted claims based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny. The district court held that defendants had not made out a prima facie case of discrimination, but nonetheless instructed the Government to articulate a race-neutral reason for each of the challenged strikes. Thereafter, the district court held that the Government’s reasons were race-neutral, and denied defendants’ Batson challenges.
“When the record contains an explanation for the government’s peremptory challenges, this Court will review ‘only the propriety of the ultimate finding of discrimination.’ ” United States v. Perkins, [413]*413105 F.3d 976, 978 (5th Cir.1997)(quoting United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.1987)). Moreover, the district court’s decision on the ultimate question of discrimination is a fact finding, which is accorded great deference. Id.
Hardy concedes that the Government’s articulated reasons were race-neutral and that the Batson challenges are without merit under Fifth Circuit precedent. However, he contends that our standard of review is too deferential and objects to the use of subjective factors when exercising peremptory strikes. This panel is bound by the circuit precedent and Hardy’s criticisms of it avail him nothing.
Davis alleges that the Government selectively questioned African-American jurors about their religious views and used their responses as the basis of strikes; that the Government struck African-Americans for reasons that applied to white jurors who were not struck; and that the Government’s articulated reasons were “non-quantifiable.” Causey complains that the Government’s articulated reasons were not credible, not quantifiable and internally inconsistent. Further, Causey characterizes the Government’s jury selection as focused on eliminating African-American women due to the erroneous and racist view that they would be more likely to acquit African-American males, based on the fact that the jury that acquitted O.J. Simpson included nine African-American females.
Unless a discriminatory intent is inherent in the prosecutor’s explanations, the reasons offered will be deemed race-neutral. See Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). The Government’s explanations were race-neutral and not outside the realm of credibility. Under the “great deference” standard of review, we affirm the district court’s assessment of the Government’s explanations for the exercise of its peremptory strikes. See United States v. Perkins, 105 F.3d 976, 979 (5th Cir.1997).
3. UNDER “COLOR OF LAW”
Defendants were all convicted for violations of 18 U.S.C. § 241 (conspiracy against rights) and § 242 (deprivation of rights under color of law). Section 241 provides, in relevant part:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in ... the free exercise of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having exercised the same ...
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section ... they shall be fined under this title and imprisoned for any term of years, or for life, or may be sentenced to death.
18 U.S.C. § 241. Section 242 provides, in relevant part:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person ... to the deprivation of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both ... and if death results from the acts committed in violation of this section ... shall be fined under this title, or imprisoned for any term of years or for life, or may be sentenced to death.
18 U.S.C. § 242. While § 242 contains an express requirement that the deprivation be “under color of law,” § 241 does not. However, § 241 has been construed to require state action. See, e.g., United States v. Tarpley, 945 F.2d 806, 808 & n. 2 (5th Cir.1991).
[414]*414Causey, Davis and Hardy challenge their convictions on Counts 1 and 2, alleging that they were not supported by sufficient evidence that the defendants acted under “color of law.” The verdicts must be sustained unless a reasonable trier of fact could not have found the “color of law” element beyond a reasonable doubt. United States v. Williams, 132 F.3d 1055, 1059 (5th Cir.1998).
Defendants argue that the offense did not have its genesis in Davis’s police duties. They point out that the evidence established that Groves’s IAD complaint against Davis was unfounded and that Davis was angry that she lied about him. Davis then called on his friend Hardy to vindicate his anger. Defendants note that they were “totally surreptitious” in using the police vehicle and Davis’s status as a police officer to commit the crime. They characterize the murder as “personal” as opposed to “official” and therefore contend that the crimes were not committed under “color of law.”
The statutes in question are Reconstruction Era civil rights statutes making it criminal to deprive a person of rights protected by the Constitution or laws of the United States under color of law. See United States v. Price, 383 U.S. 787, 801-806, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)(setting out the origins of statutes and their history from 1866 through 1966). Consequently, we have ample guidance from the Supreme Court concerning the proper interpretation of the phrase “color of law.” In United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941), the Supreme Court found that state election officials who altered ballots were acting under color of state law, because
the alleged acts of appellees were committed in the course of their performance of duties under the Louisiana statute requiring them to count the ballots, to record the result of the count, and to certify the result of the election. Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken “under color of’ state law.
Classic, 313 U.S. at 325-26, 61 S.Ct. 1031. In Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), which involved the beating death of a man by some law enforcement officers, the Supreme Court again found action under col- or of law, because the defendants had
[a]cted under “color” of law in making the arrest of [the victim] and in assaulting him. They were officers of the law who made the arrest. By their own admissions they assaulted [the victim] in order to protect themselves and to keep their prisoner from escaping. It was their duty under Georgia law to make the arrest effective. Hence, their conduct comes within the statute.
Screws, 325 U.S. at 107-8, 65 S.Ct. 1031. The Supreme Court held that “acts of officers who undertake to perform their official duties are included [within the definition of ‘under color of law1], whether they hew to the line of their authority or overstep it.” Id. at 111, 65 S.Ct. 1031. However, the “acts of officers in the ambit of their personal pursuits are plainly excluded.” Id. In Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964), the Supreme Court further explained that “[i]f an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity.” Id. at 135, 84 S.Ct. 1770.
In United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966), a deputy sheriff in Mississippi released three prisoners in the middle of the night, then proceeded to follow them and intercept them. He removed them from their car and placed them in his official car and took them to a deserted location, where they were met by two other policemen and fifteen private individuals, who, acting together, killed the three victims. The Court found that all the defendants, in-[415]*415eluding the private citizens, were acting under color of law because
the brutal joint adventure was made possible by state detention and calculated release of the prisoners by an officer of the State. This action, clearly attributable to the State, was part of the monstrous design described by the indictment. State officers participated in every phase of the alleged venture: the release from jail, the interception, assault and murder.
Price, 383 U.S. at 795, 86 S.Ct. 1152.
In United States v. Tarpley, 945 F.2d 806 (5th Cir.1991), this court held that a deputy sheriff was acting under color of law when he assaulted his wife’s former lover out of personal jealousy in the defendant’s home. The Court explained, the “air of official authority pervaded the entire incident” because the defendant used his service revolver, summoned fellow officers from the sheriffs station to help him, claimed to have special authority as a police officer, and ran the victim out of town in a squad car. Id. at 809.
In determining whether sufficient evidence supported the “under color of law” element of the convictions, we are called on to determine, first, whether Davis misused or abused his official power, see West v. Atkins, 487 U.S. 42, 50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)1, second, whether there is a nexus between the victim, the improper conduct and Davis’s performance of official duties, see Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452 n. 4 (5th Cir.1994)(en banc), and third, whether Hardy and Causey jointly engaged with Davis in the prohibited action. See Price, 383 U.S. at 795, 86 S.Ct. 1152.
The jury heard evidence that Davis misused or abused his official authority in planning, carrying out and covering up the murder. On October 13, 1994, Davis, along with his police partner Sammie Williams, who testified for the Government, began their shift around 2:30 p.m. During that shift, Davis paged Hardy and Causey, discussed with them his plan to have Groves killed, met with them in the police station, then took them in his police car to show them the area that Groves frequented. The jury heard Davis’s voice on tape telling Williams, “I could get ‘P’ to comq do that ‘hoe’ now. And then we handle the thirty.”2 Williams testified that the statement meant that Davis would get Hardy would kill Groves, then Davis and Williams would respond to the murder scene and “handle” any evidence that might link Hardy to the crime. Later in the shift, while patrolling in the police car, Davis spotted Groves and paged Hardy to give him Groves’s location. Hardy killed Groves shortly after Davis went off duty and Davis used his police radio to confirm the hit with the police officer at the murder scene. We conclude that this evidence is sufficient to support a finding that Davis misused or abused his official power to access the police station, the police car, and police radio to plan, execute, and cover up the murder. The evidence of a nexus between that abuse and the crime is likewise sufficient. Davis’s status as a police officer put him in the unique position to “handle the thirty” and thus offer protection to Hardy from the consequences of the murder. The motive for the crime [416]*416arose from a complaint lodged by Groves against Davis in his official capacity, it was facilitated by the ability of Davis to case the area in his police car without arousing suspicion and to offer assurance of police protection to his accomplices. Finally, there is ample evidence that Hardy and Causey jointly engaged with Davis in these prohibited actions. Therefore, the Appellants’ challenges to the sufficiency of the evidence on the “color of law” element fail.
4. REFUSAL TO SEVER FOR SEPARATE GUILT PHASE TRIALS
Causey and Hardy argue that their' cases should have been severed from Davis’ case for the guilt phase of the trial. Both filed motions for severance, and have therefore preserved error on this issue.
There is a strong preference for trying defendants who are indicted together in joint trials. See Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993). Severance should generally be granted only when there “is a serious risk that a joint trial would compromise a specific trial right of a properly joined defendant or prevent the jury from making a reliable judgment about guilt or innocence.” Id. at 938. The defendant seeking severance must demonstrate a “specific and compelling prejudice that resulted in an unfair trial and such prejudice must be of a type against which the trial court was unable to afford protection.” United States v. Pena-Rodriguez, 110 F.3d 1120, 1128 (5th Cir.), cert. denied, - U.S. -, 118 S.Ct. 72, 139 L.Ed.2d 32 (1997). The denial of severance is reviewed for abuse of discretion. See United States v. Mulderig, 120 F.3d 534, 542 (5th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1510, 140 L.Ed.2d 664 (1998).
Hardy claims he was prejudiced by spillover evidence that was not relevant to his prosecution. Specifically, Hardy claims he was prejudiced by evidence relating to the federal investigation of public corruption, which involved Davis’s agreement to protect drug shipments for an undercover FBI agent posing as a major drug importer. Although the district court expressly excluded any evidence relating to the investigation, Hardy maintains that it nonetheless made its way into evidence and deprived him of a fair trial.
Hardy claims that Government witnesses were required to make references to “unrelated matters,” which could only refer to the federal investigation. In addition, Davis’ partner, Sammie Williams testified that Williams and Davis became partners because “it would be more convenient for us to be partners, given the other things we were involved in.” Finally, Williams described at trial how Williams and Davis split $16,000 cash on the day Groves was murdered. Hardy claims that this evidence indicated that Davis was involved in drugs and that Hardy was part of the operation. Thus, the jury may have concluded that Davis and Hardy were involved in illegal operations and that Hardy killed Groves to placate Davis. That inference appears to be true. Stated differently, the record is replete with evidence that Davis and Hardy were engaged in illegal activities and that Hardy murdered Groves to placate Davis and ensure continuing police protection for his drug trafficking and related violent offenses. Indeed, that was the Government’s primary theory at trial. Evidence directly tied to the Government’s theory on motive is relevant and admissible against Hardy. With regard to evidence of the “unrelated” federal investigation, Hardy concedes there was no specific reference to that investigation in the guilt phase of the trial. In addition, the district court gave cautionary instructions requiring the jury to consider the evidence against each defendant individually, and not to “think of them as a group.” The district court’s refusal to sever as to Hardy was not an abuse of discretion.
Causey sought severance from both Davis and Hardy, arguing that he would be prejudiced by the conduct of his more [417]*417culpable co-defendants, and that the non-capital character of his prosecution set him apart from the other defendants. The district court held that Causey’s role as Hardy’s “right-hand man” made Causey an integral part of the charged conspiracy. The district court also held that Causey had not demonstrated that any compelling prejudice would result as a consequence of the non-capital character of his prosecution.
Causey’s first argument, that he was prejudiced by evidence of Hardy and Davis’s drug relationship is unavailing. As with Hardy, there was sufficient evidence tying Causey to Davis’s illegal activities to support the district court’s refusal to sever. Causey also complains that his position on particular members of the venire panel and with respect to certain trial decisions was given less weight because of the non-capital nature of his prosecution. Causey claims that many of the African-American jurors excluded because of their views on the death penalty would have been acceptable to him. Causey further claims that he was deprived of his rights under the equal protection clause as a result of his joint trial with capital defendants.
The Supreme Court has rejected the argument that a non-capital defendant cannot receive a fair trial when tried jointly with capital defendants. See Buchanan v. Kentucky, 483 U.S. 402, 418-419, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987). Thus, Cau-sey’s claim is not one of per se error. We perceive no compromise of any specific trial right nor any danger that the jury was prevented from reaching a rehable verdict in Causey’s ease. We therefore hold that the district court did not abuse its discretion in denying Causey’s motion for severance.
5. PROSECUTORIAL MISCONDUCT
Davis maintains his right to a fair trial was substantially affected by the prosecutor’s improper remarks in closing argument. Improper comments by the prosecutor may constitute reversible error when the defendant’s right to a fair trial is substantially affected. United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir.1990). Whether such error requires reversal depends upon the magnitude of the prejudicial effect, the efficacy of any cautionary instruction and the strength of the evidence of the defendant’s guilt. United States v. Murrah, 888 F.2d 24, 28 (5th Cir.1989).
Steve Jackson testified at trial that he drove his light blue Maxima to the murder scene. At trial, there was conflicting evidence concerning whether the getaway car observed leaving after the murder was champagne or light blue. Davis claims the prosecutor improperly offered the prosecutor’s own testimony on this issue by stating:
Well, I have a champagne-colored vehicle, which is metallic beige, and in certain lighting conditions at night, it looks like light blue. Trust me. The lights are not very good in that poor Ninth Ward neighborhood.
Davis lodged an objection to this argument, but the district court continued without issuing a cautionary instruction.
Another issue at trial related to the police 911 tapes recorded on the night of the murder, which had inadvertently been recorded over by New Orleans Police. Defense counsel argued there was something suspicious about the absence of the 911 tapes. The prosecutor responded in argument by stating:
There was nothing on that 911 tape that would take away the force of what you heard. It’s a smokescreen.
Davis also objects to unflattering characterizations of the defendants by the prosecutor. The prosecutor called Hardy “an animal of the street.” The prosecutor referred to Davis as “a street killer, a ruthless person.” Davis also objects to the prosecutor’s statements about the O.J. case:
[418]*418You can forget about that conspiracy theory. That may fly on the west coast, it’s not going to fly here, because it makes no sense.
Davis also objects to the following remark made in rebuttal:
[B]ut what happened on that day to that poor woman, a citizen of the United States, should not have happened in this country. Maybe somewhere else not in the United States. Because what the evidence showed what we proved to you through the very voices of those defendants was the existence of a police death squad in New Orleans, Louisiana, in the state of Louisiana.
Finally, Davis objects to the following argument made in closing:
[Tjoday we are in a court of law in the United States of America, the finest judicial system in the world. It’s time for justice. It’s time to stop the killing, stop the carnage. There’s only one way to get justice in the case, ladies and gentlemen, and that’s to bring back a verdict of guilty on each and every one of these gentlemen.
Davis did not lodge contemporaneous objections to any of the remarks except those relating to the color of the getaway car. This Court’s review of the latter remarks is therefore for plain error only.
After reviewing the record, we conclude that any error in the prosecutor’s closing argument does not require reversal due to the overwhelming evidence of Davis’s guilt and the negligible prejudicial affect of the remarks in the context of this case. See Murrah, 888 F.2d at 28.
6. EVIDENTIARY RULINGS
6a. “Other offense” evidence
Davis and Hardy challenge the admission of Steve Jackson’s testimony that defendant Hardy committed other murders, that Hardy was a drug dealer, and that Hardy possessed many guns. Davis and Causey challenge the admission of Jackson’s testimony that defendant Causey was “in the game,” and Jackson’s explanation that “in the game” meant selling drugs, robbing, and killing people. Davis also challenges the admission of Williams’s testimony, which may have allowed the jury to deduce that Davis and Williams were in the drug business together.
Appellants argue that the introduction of these items was (1) extrinsic evidence of other offenses, (2) probative only of the defendants’ bad character, (3) irrelevant to any element of the offenses, and (4) highly prejudicial. Federal Rule of Evidence 404(b) prohibits the admission of “other crimes wrongs or acts ... to prove the character of a person in order to show action in conformity therewith.” However, such proof is admissible to establish motive, opportunity, intent, preparation, plan or knowledge. See Fed.R.Evid. 404(b).
During cross-examination of Jackson, defense counsel asked whether defendant Hardy was a friend of Jackson’s. Jackson replied:
I’m a friend of his, but he’s not to be trusted. He done killed seven people from the neighborhood, seven neighbors, then killed another in the neighborhood.
The district court admonished the witness to answer the questions and to testify from his own knowledge, not what he knows from someone else. Davis claims Jackson’s comment was non-responsive and highly prejudicial.
Jackson also testified that he had seen Davis and Hardy together in the presence of guns and drugs, that Causey was “in the game” and that “in the game” meant that Causey was involved in dealing drugs, robbing and killing people. Williams testified that Davis had told Williams that Hardy was a drug dealer who “looked out for” Davis and that he had heard Steve Jackson was a member of Hardy’s drug dealing “crew.”
The Government introduced evidence of other firearms belonging to Hardy that were seized as the result of various search [419]*419warrants. Davis argues that Davis’s and Hardy’s mutual involvement in drugs and guns is immaterial to this case. Similarly, he argues that no weapon other than the murder weapon was relevant to the Government’s case.
With regard to Davis’s and Hardy’s drug and weapon affiliation, the district court ruled prior to trial that Davis’s and Hardy’s joint drug activities were relevant to establish why Davis would solicit Hardy to commit the murder.
With regard to evidence of other weapons, the district court ruled that such evidence was admissible to prove Hardy’s facility with and access to weapons and Hardy’s practice of scattering his weapons among his cohorts, which tended to support the Government’s evidence that Hardy retrieved a gun from Causey prior to the murder.
Evidence that Davis and Hardy were in involved in illegal activities that included violent crimes and drug dealing was relevant to prove both opportunity and motive under the Government’s theory of the case, which was that Hardy was willing to execute Groves and Davis was able to order that execution, because of their mutual involvement in these activities, and because of Davis’s status as a police officer. Causey was alleged to be Hardy’s right hand man. Jackson’s testimony that Causey was “in the game” was likewise relevant to motive and opportunity.
Davis also challenges the admission of FBI Agent Stanley Hadden’s testimony, which twice referred to an “unrelated investigation” of public corruption that involved obtaining taps on the cellular phones of Davis and his partner Sammie Williams.
The district court excluded the details of the federal investigation into Davis’s drug trafficking operations as irrelevant to the issues to be proven at trial. Nonetheless, FBI agent Stanley Hadden testified that the taped telephone conversations were obtained as the result of an “unrelated” federal investigation. Defendants claim they suffered unfair prejudice requiring a new trial as a result.
This testimony was presented to authenticate the tapes, which were properly admitted. Any resulting prejudice from the non-specific references to the federal investigation complained of by defendants was insufficient to warrant reversal.
Defendants are not entitled to relief on this ground of error.
6b. The gun barrel
Defendants complain that admission into evidence of the gun barrel recovered from the Industrial Canal was error.
At trial, Steve Jackson, driver of the getaway car, testified that Hardy threw the barrel of the murder weapon out the window of the car and into the Industrial Canal near the Florida Avenue Bridge.
Jackson did not tell the Government about the barrel being removed and thrown off the bridge until almost one year after he was originally questioned.3 Shortly after Jackson told the Government, a Government diver recovered a barrel compatible with the 9mm weapon recovered from Causey’s house and believed to be the murder weapon. Defendants argue that the barrel was not properly authenticated. Defendants note that the barrel was too corroded to be attached to the alleged murder weapon and that tests on the alleged murder weapon were inconclusive.
The evidence is sufficient to support an inference that the recovered barrel was on the murder weapon when it was used to kill Kim Groves. At trial, a firearms expert testified that the barrel was compati[420]*420ble with the alleged murder weapon. An FBI expert also testified that the level of corrosion on the barrel was consistent with it being in the water for thirteen months, the period of time between the murder and its recovery.4 Further, the barrel and the circumstances of its recovery support Jackson’s testimony about the events of the crime. See United States v. Ramey, 414 F.2d 792, 794 (5th Cir.1969)(relying on facts surrounding the discovery of a pistol to support an inference that it was used to perpetrate the robbery at issue in that case).
Defendants are not entitled to relief on this ground.
6c. “Rock-a-bye, baby” stipulation
Causey complains that the district court accepted a stipulation by the Government and defendants Davis and Hardy that “rock-a-bye, baby” was a slang expression understood to refer to killing someone, as in “it will be rock-a-bye, baby for you.” The expression was drawn from the movie “New Jack City.” In that movie, a female drug dealer used the expression before shooting people.
Causey objected that the stipulation was over broad and should be changed to reflect that “rock-a-bye, baby” refers to the killing of a drug dealer. The district court overruled Causey’s objection and accepted the stipulation on the basis that Davis and Hardy were the only ones who used the expression in the relevant telephone conversations.
Davis used the expression “rock-a-bye” when gleefully confirming with Hardy that Groves was dead. Davis said, “Yeah, yeah, yeah, rock, rock-a-bye.” Davis also used the phrase to tell Hardy that if Nathan Norwood followed up on the IAD complaint against Davis, it would be “rock-a-bye, baby” for him.
The district court’s decision to accept a stipulation from Davis and Hardy, to the exclusion of Causey, as to the meaning of the phrase “rock-a-bye, baby” was not error. Causey is not entitled to relief on this ground.
7. CAUSEY’S SENTENCING
Causey argues that the district court misapplied the sentencing guidelines by calculating his sentence using murder as the underlying offense notwithstanding the fact that he was not convicted on Count 3, which alleged witness tampering accomplished by the murder of Groves. We review the district court’s legal interpretation and application of the sentencing guidelines de novo, and its factual findings in support of the sentence for clear error. United States v. Parker, 133 F.3d 322, 329 (5th Cir.1998).
Causey’s sentence was calculated using U.S.S.G. § 2H1.1, which is the appropriate guideline for Causey’s convictions under 18 U.S.C. §§ 241 and 242. Under § 2H1.1, the base offense level is the greatest of (1) the offense level applicable to any underlying offense, or (2) 12, 10 or 6, depending upon the circumstances of the offense. The PSR derived the base offense level from U.S.S.G. § 2A1.1(a), the guideline applicable to First Degree premeditated murder. That guideline provides a base offense level of 43, which requires a mandatory term of life imprisonment. See also U.S.S.G. § 2X1.1 (establishing the base offense level for conspiracy as that of the substantive offense). Causey objected that he had not been convicted of murder, but the district court adopted the PSR and sentenced Causey accordingly.
Application note 1 to § 2H1.1 provides that “offense level applicable to any underlying offense” means “the offense guideline applicable to any conduct established by [421]*421the offense of conviction that constitutes an offense under federal, state, or local law.” (emphasis added). The conduct established by the offenses of conviction— conspiring to murder and participating in the murder of Groves — was appropriately employed by the district court in determining Causey’s base offense level of 43. See United States v. Woodlee, 136 F.3d 1399 (10th Cir.1998). The jury’s failure to reach a verdict on Count 3 has no bearing on this determination. Causey mischarac-terizes Count 3 as the “murder” count and as the “underlying offense” count. In fact, Count 3 was the witness tampering count, while Counts 1 and 2 charged violation of civil rights under color of law. All three Counts involved the underlying offense of murder. We therefore affirm the district court’s application of the sentencing guidelines to Causey.
8. TAMPERING WITH A WITNESS
Davis and Hardy were convicted on Count 3 for violation of 18 U.S.C. § 1512(a)(1)(C), which provides, in pertinent part:
Whoever kills or attempts to kill another person, with intent to—
(C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense ... shall be punished as provided in paragraph (2).
(2) The punishment for an offense under this subsection is—
(a) in the case of murder ... the death penalty or imprisonment for life....
18 U.S.C. § 1512(a)(1)(C) & (a)(2)(A). “Law enforcement officer” as used in § 1512 “means an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant ... authorized under law to engage in or supervise the prevention, detection, investigation, or prosecution of an offense.” 18 U.S.C. § 1515(a)(4). However, § 1512 also provides:
In a prosecution under this section, no state of mind need be proved with respect to the circumstance ... that the judge is a judge of the United States, or that the law enforcement officer is an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government, or serving the Federal Government as a adviser or consultant.
18 U.S.C. § 1512(f)(2).
Defendants Davis and Hardy argue that the evidence is insufficient to support their convictions on Count 3 of the indictment because the Government failed to prove the required federal nexus of potential communication. Defendants argue that conviction under § 1512(a)(1)(C) requires proof of the following elements: (1) that defendant killed a person; (2) that defendant was motivated by a desire to prevent communication between any person and law enforcement authorities about the commission of an offense; (3) that the offense was, in fact, a federal offense; and (4) that the defendant believed the person might communicate with federal authorities.
Based on the plain language of § 1512(f)(2), the fourth element identified by defendants is incorrech — there is no requirement that the Government prove that the defendants believed the law enforcement officials to be federal. Further, defendants’ argument that Williams, rather than Davis, committed the act of police brutality alleged by Groves’s complaint is irrelevant. Prosecution under § 1512 is not limited to defendants who are guilty of the underlying federal offense which the victim reported or was expected to report.
Further, defendants argue that Groves’s internal complaint to local police had not been reported to federal law enforcement and was not yet a ripe civil rights complaint as the Government char[422]*422acterized it. However, this lack of “ripeness” is not controlling. “An official proceeding need not be pending or about to be instituted at the time of the offense.” 18 U.S.C. § 1512(e)(1); see also United States v. Galvan, 949 F.2d 777, 783 (5th Cir.1991)(fact that Government informer was no longer communicating with the Government at time of offense did not render prosecution under § 1512(a)(1)(C) inappropriate). Nonetheless, we are convinced that the evidence was not sufficient to establish the federal nexus required by § 1512.
The evidence was clearly sufficient to allow the jury to conclude (1) that defendants killed Groves; (2) that defendants were motivated by a desire to prevent communication between Groves and law enforcement authorities about the alleged police brutality offense; and (3) that the offense which was the subject of Groves’s complaint — a civil rights violation — could, in fact, be charged as a federal offense.
What remains is to determine what conclusions the evidence will support concerning whether the communication defendants sought to prevent would in fact be to federal law enforcement officers. This circuit has not previously addressed an analogous situation. However, the Third Circuit in United States v. Bell, 113 F.3d 1345 (3rd Cir.1997), has considered this issue, stating:
In view of the statute’s clear command that the government need not prove any “state of mind” on the part of the defendant with respect to the federal character of the proceeding or officer, 18 U.S.C. § 1512(f), we do not read [the statute] as requiring proof that the defendant believed the victim might communicate with law enforcement officers whom the defendant knew or believed to be federal officers. Rather, we read this sentence as recognizing that what the statute mandates is proof that the officers with whom the defendant believed the victim might communicate would in fact be federal officers.
Bell, 113 F.3d at 1349 (emphasis added). This element “may be inferred by the jury from the fact that the offense was federal in nature, plus appropriate evidence.” Id. at 1349.
The Eleventh Circuit, interpreting the similarly worded § 1512(b)(3)5 has held, “all that was required [to establish a] ... violation of § 1512(b)(3) was the possibility or likelihood that [the defendants’] false and misleading information would be transferred to federal authorities irrespective of the governmental authority represented by the initial investigators.” United States v. Veal, 153 F.3d 1233, 1251-52 (11th Cir.1998). The Eleventh Circuit cited United States v. Galvan, 949 F.2d 777, 783 (5th Cir.1991)(“[T]he statute focuses on the defendant’s intent: whether she thought she might be preventing [the witness’s] future communication of information”), from this court, as well as other Circuits’ interpretations of § 1512(a)(1)(C), as authority for their interpretation of § 1512(b)(3). We do not find the Eleventh Circuit’s reasoning persuasive in resolving the question before us in this case. Rather, as dictated by Galvan, we parse the record focusing on the defendants’ intent.
The evidence reveals that Davis’s specific intent was to short-circuit the IAD investigation and to send the IAD a message to leave him alone in his misuse of police power. There is no evidence that the likelihood or possibility that the mur[423]*423der might impact a future federal investigation played a part in this crime. The evidence was sufficient to establish that Groves’s police brutality complaint concerned a federal crime and that the defendants intended to interfere with Groves’s pursuit of that complaint. However, prior to her death, the only agency to which Groves had complained was the New Orleans Police Department. There is nothing in this record which would support a jury finding that any of the persons to whom Groves complained were federal officers. Likewise, there is nothing in this record which would support a jury finding that Groves had any intention of communicating with any federal law enforcement officer prior to her death. Finally, there is no evidence in the record that would support an inference that Davis intended to prevent Groves from pursuing her complaint beyond the New Orleans Police Department IAD and communicating with authorities who were in fact federal officers. We therefore reverse Hardy’s and Davis’s convictions on Count 3.
9. CAPITAL SENTENCING ISSUES — DAVIS AND HARDY
Davis and Hardy were sentenced to death pursuant to the provisions of the Federal Death Penalty Act of 1994, 18 U.S.C. §§ 3591-3597 (FDPA). The Government provided notice of its intent to seek the death penalty, and notice of the aggravating factors upon which it intended to rely, as required in § 3593(a).
The jury did not make separate recommendations concerning the appropriate penalties for each count of conviction. Because it is impossible to say that the jury’s penalty phase recommendations of the death penalty were not influenced by the fact that Davis and Hardy had received three death eligible convictions, rather than two, we must vacate the death sentences and remand for new sentencing hearings pursuant to 18 U.S.C. § 3593(b)(2)(D)(providing that the penalty phase be conducted before a jury impaneled specifically for the purpose of the sentencing hearing if, after initial imposition of a sentence, reconsideration of the sentence is necessary). Our remand of Hardy’s and Davis’s cases for a new sentencing hearing moots the remaining issues raised in their appeals alleging error in their initial penalty phase proceedings.
10. CONCLUSION
For the foregoing reasons, we affirm Causey’s convictions and sentences; affirm Hardy’s and Davis’s convictions as to Counts 1 and 2; reverse Hardy’s and Davis’s convictions as to Count 3; vacate Hardy’s and Davis’s death sentences; and remand Hardy’s and Davis’s cases for re-sentencing.
AFFIRMED in part, REVERSED in part, VACATED AND REMANDED in part.