Opinion by Judge CEBULL; Dissent by Judge KOZINSKI
QPINION
CEBULL, District Judge.
Juan Ramirez-Lopez (Ramirez-Lopez) seeks reversal of his jury conviction for criminal violations 8 U.S.C. § 1324(a)(1)(A)(i), (a)(1)(A)(ii), (a)(1)(B)(iv), and (a)(2)(B)(ii) (alien smuggling, alien smuggling for profit, and transportation of aliens resulting in death). He was sentenced to a term of seventy-eight (78) months. On appeal, the Defendant raises a number of issues, specifically, whether (1) the Defendant’s due process and compulsory process rights were violated when the Government removed witnesses from the United States before Defense Counsel could interview them because Ramirez-Lopez failed to demonstrate either bad faith by the Government or prejudice to his case; (2) inadmissible evidence and improper argument by the Government occurred at trial that would constitute reversible error; (3) cumulative errors occurred at trial as to justify reversible error; (4) whether 8 U.S.C. § 1324 is unconstitutional in light of the U.S. Supreme Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (5) whether evidence of mens rea as it relates to death is a required element in finding guilt under 8 U.S.C. § 1324(a)(1)(B)(iv).
FACTS
On March 6, 2000, Defendant-Appellant Ramirez-Lopez was arrested with fourteen others who had crossed the border into the United States from Mexico through the mountains of eastern San Diego County. During that crossing, due to inclement weather, a member of the party [1149]*1149died of hypothermia. Upon placement in custody, Appellant Ramirez-Lopez was taken to the hospital for frostbite and subsequently interviewed. During his interview by border patrol agents, he waived his Miranda rights as well as his Lujan-Castro right to retain otherwise deportable witnesses. During that same interview, he denied being the leader of the group.
When border patrol agents interviewed the other fourteen members of the group, two of the members inculpated Ramirez-Lopez as the guide or leader of the group while the remaining members exculpated him, denying that he was the guide. Rather, they stated that their guide had abandoned them or that they did not have a guide. Pursuant to the Defendant’s Lu-jam-Castro waiver, the border patrol returned all but five of the witnesses. The Government did not ascertain the exact home addresses of the deported witnesses. Border Patrol officers retained two witnesses that inculpated Ramirez-Lopez and three that exculpated his involvement as a guide.
Prior to trial, Ramirez-Lopez made a number of motions in limine. Specifically, he moved for dismissal on various grounds including (1) the involuntary waiver of his Miranda and Lujan-Castro rights; (2) the unconstitutionality of the charges against him in light of Apprendi v. New Jersey; and (3) the unreasonable delay between custody and arraignment. The district court denied the Defendant’s motions.
ANALYSIS
I. Were Ramirez-Lopez’s Due Process and Compulsory Process Rights Violated When the Government Removed Witnesses from the United States Before Defense Counsel Could Interview Them?
Appellant Ramirez-Lopez contends that the district court erred when it failed to dismiss the indictment (1) because he had not voluntarily and intelligently waived his Miranda and Lujam-Castro rights; and (2) due to the delay in arraignment. Further, he contends that the government violated his rights under the Due Process Clause of the Fifth Amendment and Compulsory Due Process Clause of the Sixth Amendment when they deported nine witnesses that had exculpatory and material testimony regarding his role in the offense charged. The denial of a motion to dismiss based on a violation of constitutional rights is reviewed de novo. United States v. Lam, 251 F.3d 852, 855 (9th Cir.2001) (Sixth Amendment); United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.2001) (Due Process).
A. Waiver of Miranda and Lujan-Castro Rights
In determining whether a voluntary and intelligent waiver of Ramirez-Lopez’s Miranda and Imjan-Castro rights was had, the district court held an evidentiary hearing on the Defendant’s motion to suppress the waivers and a motion to dismiss the indictment. At that hearing, Ramirez-Lopez argued that he did not waive his Miranda rights nor did he waive his Lujan-Castro right to retain otherwise deportable witnesses. Ramirez-Lopez acknowledges that he was advised of his Miranda and Lujan-Castro rights and did voluntarily sign both waivers, but he contends that they were not done knowingly or intelligently.
Specifically, he argues that at the hearing, he testified that he had little education; that he could not read or write; that he had just been hospitalized for frostbite on his feet; and that in another case involving a group of aliens seized that same day and in that same area, the Government had detained all eight witnesses, all of whom provided inculpatory informa[1150]*1150tion regarding a Defendant in a different case.1
Subsequent to the hearing, the district court denied Ramirez-Lopez’s motion to suppress the Miranda and Lujan-Castro waiver. The district court found that the Government had a fluent Spanish-speaking agent interviewing Ramirez-Lopez,' that Ramirez-Lopez was responsive and understood the questions asked of him and that Ramirez-Lopez made no mention of any pain during the interview.
Motions to suppress are reviewed de novo. United States v. Percy, 250 F.3d 720, 725 (9th Cir.2001). On the aforementioned facts, the district court held that Ramirez-Lopez’s waivers were made knowingly, intelligently and voluntarily. A review of the record reveals that the district court’s findings supporting Ramirez-Lopez’s Miranda waiver were more detailed than those upholding the Lujan-Castro waiver. Given that the waivers were made within the same interview and time frame, we impute the district court’s Miranda findings to the Ramirez-Lopez’s Lujan-Castro waiver and hold the district court’s failure to make a more detailed finding, as to Ramirez-Lopez’s LujanCastro waiver, harmless.
In addition, Ramirez-Lopez contends that when he waived his LujanCastro right, he was not assisted by counsel and was not informed as to how the witnesses might be used nor to what facts the witnesses might testify. Whether a waiver was knowingly and intelligently made is reviewed for clear error. United States v. Amano, 229 F.3d 801, 803 (9th Cir.2000). A reading of United States v. Lujan-Castro reveals no stated requirements that assistance of counsel is necessary before a waiver of a Lujan-Castro right can be had, so long as the waiver is made knowingly, intelligently and voluntarily. 602 F.2d 877 (9th Cir.1979). Moreover, a defendant need not understand all the possible consequences that would flow from waiving a right in order to execute a valid waiver. Derrick v. Peterson, 924 F.2d 813, 824 (9th Cir.1990). Upon review, we find that the district court did not commit clear error by finding that Ramirez-Lopez knowingly and intelligently waived his right to detain deportable alien witnesses.
B. Delay in Arraignment
Ramirez-Lopez alleges that the district court erred when it failed to dismiss or, in the alternative, suppress incriminating statements due to delay in arraignment. We review the district court’s ruling for clear error. United States v. Padilla-Mendoza, 157 F.3d 730 (9th Cir.1998). Ramirez-Lopez was taken into custody at approximately 10:30 a.m. on March 6, 2000. That same day, the Mexican consulate came and spoke to him. Also on that day, agents spent time trying to identify the dead body that was found. At approximately 7:40 p.m, the agents gave Miranda warnings to Ramirez-Lopez and began interviewing him. Prior to his arraignment, the agents did not interview him again. Although Ramirez-Lopez did not confess at the interview, he did make incriminating statements. Agents spent the next day preparing the complaint and interviewing multiple material witnesses. He was not arraigned until 10:07 a.m. on March 8, 2000. On the morning of March 8, 2000, the magistrate judge reviewed the Government’s complaint and found probable cause for its support.
Ramirez-Lopez contends the resulting delay of almost 48 hours from custody to arraignment was clearly for the purposes of interrogation and justified a [1151]*1151dismissal of the indictment for unreasonable and unnecessary delay or, at the very least, suppression of any incriminating statements he may have made. As Ramirez-Lopez received his probable cause determination within 48 hours, he carries the burden of proving that the border patrol agents unnecessarily delayed the hearing in order to interrogate him. Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (citing Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)).
Federal Rule of Criminal Procedure 5(a) requires “[a]n officer making an arrest under a warrant ... [to] take the arrested person without unnecessary delay before the nearest available magistrate judge....” United States v. Van Poyck, 77 F.3d 285, 288 (9th Cir.1996). This requirement is balanced against the presumption that a complaint reviewed by a magistrate judge within 48 hours of arrest is presumed reasonable. Riverside, 500 U.S. at 56, 111 S.Ct. 1661. The Defendant bears “the burden of showing that any delay was unreasonable.” Id.
The district court found that the delay in arraignment was reasonable due to the number of witnesses to be interviewed, Ramirez-Lopez’s need for medical treatment and the circumstances behind the death of one of the border crossing members. In reaching its conclusion, the district court found it significant that, after the interview on the evening of March 6, 2000, agents conducted no further interviews with him prior to arraignment. In the circumstances of this case, we find the delay was not unreasonable. County of Riverside, 500 U.S. at 56-57, 111 S.Ct. 1661; Van Poyck, 77 F.3d at 288-89. Accordingly, we find that the district court did not err in denying the motion to suppress the statements on the basis of pre-arraignment delay.
C. The Deportation of Witnesses was not in Violation of Ramirez-Lopez’s Right to Compulsory Due Process
Ramirez-Lopez contends that the district court erred when it denied his motion to dismiss in fight of the Government having deported material witnesses in violation of his right to Compulsory Due Process and Fifth Amendment right to Due Process. United States v. Valenzuela-Bernal. 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). He also contends that the district court erred when it denied his motion to have the statements of the material witnesses read to the jury. Whether an indictment should be dismissed for failure of the Government to retain alien witnesses is reviewed de novo. United States v. Armenta, 69 F.3d 304, 306 (9th Cir.1995). Ramirez-Lopez contends that there was a reasonable likelihood that the testimony of the removed witnesses could have affected the trier of fact and that the Government’s act of deporting his potential witnesses was a violation of his due process rights. Valenzuela-Bernal, 458 U.S. at 874, 102 S.Ct. 3440.
Both parties agree that the mere deportation of a witness by the Government does not constitute a violation of the Compulsory Due Process Clause of the Sixth Amendment or of the Due Process Clause of the Fifth Amendment. Id. Rather the burden falls on the defendant to make a “plausible showing” that the Government’s deportation of a witness whom the defendant wishes to question deprived him of testimony that would have been material and favorable to his defense, “in ways not merely cumulative to the testimony of available witnesses.” Id. at 873, 102 S.Ct. 3440.
In order to prevail on a Valenzuela-Bernal claim, Ramirez-Lopez must satisfy a two-prong test of (1) an initial show[1152]*1152ing that the Government acted in bad faith; and (2) that this conduct resulted in prejudice to Ramirez-Lopez’s case. United States v. Dring, 930 F.2d 687, 693 (9th Cir.1991). Ramirez-Lopez contends that both prongs are satisfied in light of the Government’s deportation of nine material witnesses who would have allegedly testified in his favor.
Reviewing the first prong, Ramirez-Lopez contends that a showing of bad faith is not actually required under Valenzuela-Bernal. Rather, Ramirez-Lopez argues that this Court misunderstood the scope of the U.S. Supreme Court’s ruling in Valenzuela-Bernal. Ramirez-Lopez contends that in Bring, this Court added a requirement that the Defendant had the burden to make a bad faith showing by the Government where none existed. Ramirez-Lopez argues that this requirement exceeded the scope of the U.S. Supreme Court’s holding in Valenzuela-Bernal. Even if true, Ramirez-Lopez’s argument is irrelevant because Bring is binding on this panel absent an intervening Supreme Court or Ninth Circuit en banc decision. United States v. Gay, 967 F.2d 322, 327 (9th Cir.1992).
Further, we need not define the precise contours of “bad faith” in this context because Ramirez-Lopez has failed to establish the requisite prejudice prong as required by Bring. To establish prejudice, Ramirez-Lopez must at least make “a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.” Bring, 930 F.2d at 693-94 (quoting Valenzuela-Bernal, 458 U.S. at 873, 102 S.Ct. 3440 (1982)). Ramirez-Lopez was aided by the testimony of the three alien witnesses who were not deported in the face of his Lujan-Castro waiver; they testified at trial that Ramirez-Lopez was not the guide or leader. The testimony of more people that he was not the guide or leader would have been cumulative. U.S. v. Tafollo-Cardenas, 897 F.2d 976 (9th Cir.1990). Since the deported witnesses would have most likely given the same testimony, the district court’s refusal to admit their statements was consistent with Bring and Valenzuela-Bernal’s holding, as the statements would have been cumulative. Ramirez-Lopez has failed to show how the deported witnesses’ testimonies were more than “merely cumulative.” Thus, absent a more substantial showing of prejudice than Ramirez-Lopez has made in this case, he is not entitled to relief under Bring.
Additionally, Ramirez-Lopez contends that the district court erred when it denied his motion to admit the statements of his exculpatory witnesses in light of their deportation. The record reflects that after their interviews, the border patrol officers made notes which contained statements taken from the witnesses. At the hearing on this issue, Ramirez-Lopez sought admission of these reports containing the deported witnesses’ statements under the ‘catch-all’ exception of Federal Rule of Evidence 807. The district court found the deported witnesses unavailable under the hearsay rule, but denied Ramirez-Lopez’s motion to admit the statements of the nine deported witnesses on the grounds that the statements would be cumulative. A district court’s order precluding certain testimony is an evidentiary ruling subject to review for an abuse of discretion. United States v. Ravel, 930 F.2d 721, 726 (9th Cir.1991).
Presently, Ramirez-Lopez contends that the district court’s ruling was erroneous because it is contrary to the Federal Rules of Evidence as well as the Due Process Clause of the Fifth Amendment and the Compulsory Process Clause of the Sixth [1153]*1153Amendment. The witness or witnesses’ statements found in the border patrol notes, if admitted into evidence, would have been a hearsay report containing the deported witnesses’ hearsay statements. See Fed.R.Evid. 801(c) (“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). These reports, if admitted, contain hearsay-within-hearsay. Federal Rule of Evidence 805 states, “[H]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule.At a hearing on this issue, Ramirez-Lopez argued that these reports met the residual exception of the hearsay rule under Federal Rule of Evidence 807 and should be admitted.
Hearsay evidence sought to be admitted under Rule 807 must have circumstantial guarantees of trustworthiness equivalent to the listed exceptions to the hearsay rule. United States v. Sanchez-Lima, 161 F.3d 545, 547 (1998) (citing United States v. Fowlie, 24 F.3d 1059, 1069 (9th Cir.1994)). Furthermore, the statements must (1) be evidence of a material fact; (2) be more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) serve the general purposes of the Rules of Evidence and the interests of justice by its admission into evidence. Id.; Fed.R.Evid. 807. At the hearing, Ramirez-Lopez made strong arguments for the three prongs of Rule 807, but presented no argument in support of the “circumstantial guarantees of trustworthiness” of the witnesses’ statements, as stated in Fowlie. Id. In Sanchez-Lima, the Court admitted videotaped statements of witnesses, in part, after it found that the statements possessed guarantees of trustworthiness because the declarants were under oath and subject to the penalty of perjury. Id. In the present case, no evidence has been presented to the Court that these statements were made under oath and Ramirez-Lopez has not directed the court to any other evidence that establishes that the statements possess guarantees of trustworthiness. Aside from the district court’s ruling of cumulative, the deported witness statements contained in the border patrol’s interview notes do not fall within the “catch-all” hearsay exception of Fed. R.Evid. 807. On the aforementioned grounds, we find that the district court did not abuse its discretion in denying the motion to dismiss.
II. Did the District Court Err in Admitting Ramirez-Lopez’s Statements at Trial; at Refusing to Grant a New Trial on the Testimony of a Government Witness; and at Allowing the Jury to Consider Allegedly Improper Argument and Commentary by Government During Rebuttal?
A. J*0Jp(b) Evidence
Ramirez-Lopez contends that the district court erred by not precluding testimony from a Government witness regarding a threat made against him by Ramirez-Lopez. A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion. United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir.2000) The trial court’s decision to admit evidence of prior crimes or bad acts pursuant to the Federal Rule of Evidence 404(b) is reviewed for abuse of discretion. United States v. Chea, 231 F.3d 531, 534 (2000). Such decisions will be reversed for an abuse of discretion only if such nonconsti-tutional error, more likely than not, affected the verdict. United States v. Ramirez, 176 F.3d 1179, 1182 (9th Cir.1999). However, if a party fails to object to admission of the evidence, admission of that evidence [1154]*1154is reviewed only for plain error. Johnson v. United States, 500 U.S. 461, 466 (1997).
During the testimony of the Government’s material witness, Jose Alvardo, the Government elicited testimony from him stating that just prior to testifying, Ramirez-Lopez threatened him by moving his finger in a back and forth direction indicating to Alvardo not to say anything. Ramirez-Lopez’s attorney made no objection at trial regarding this testimony, but now contends that the threat was “other acts” or “wrongs” that are not “intrinsic” to charges in the indictment. Ramirez-Lopez alleges that these statements constitute prior “bad acts” under Federal Rule of Evidence 404(b) and therefore, the Government should have provided him reasonable notice of this testimony. In the alternative, Ramirez-Lopez argues that even with notice the allegation was baseless and, even if true, could only be admitted for the limited purpose of showing propensity for criminal activity. In response, the Government contends that the threats occurred only moments before the witness was to testify.
When Alvardo was led into the courtroom during a break, he sat in the back and spoke with the interpreter. On the stand, Alvardo states that while he was sitting there, Ramirez-Lopez turned around and wagged his index finger at him in an unspoken attempt to silence his testimony. The Government contends that any defect in the record is directly attributable to Ramirez-Lopez’s failure to object.
The Government further contends that the threat was not 404(b) evidence, since the threat was evidence concerning the crime charged and therefore “inextricably intertwined.” United States v. Warren, 25 F.3d 890, 895 (9th Cir.1994). Here, Ramirez-Lopez was charged with transportation for profit of illegal aliens into the United States resulting in death. We find that the Government’s contention is without merit. A threat at trial cannot be viewed as “inextricably intertwined” with a charge of transportation for profit of illegal aliens and therefore cannot be construed as falling outside the purview of 404(b).
Evidence demonstrating Ramirez-Lopez’s consciousness of guilt is admissible under Fed.R.Evid. 404(b) if the court determines that the evidence is more probative than prejudicial under a Fed.R.Evid. 403 balancing test. Evidence of threats by Ramirez-Lopez against a potential witness, if this balancing test is satisfied, can be used to show guilty knowledge. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 897 (9th Cir.1996). As such, the question then turns on whether the Government should have given notice to Ramirez-Lopez of. its intent to elicit testimony regarding the threat since he had made a pretrial request for all 404(b) evidence.
There is no doubt that once the Government discovered this information, they could have asked for a sidebar and informed the district court of the threat and allowed the defense attorney time to question the witness as Rule 404(b) would dictate under the notice requirement. The failure by the Government to do so was in error. However, since the Defense attorney failed to make a Rule 404(b) objection for lack of notice and request the district court to exclude the evidence or give the jury a limiting instruction, this Court reviews for plain error. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
In Olano, the Supreme Court explained that to correct for plain error, there must be an actual error and not merely a waiver of rights. Id. Moreover, the error must be “clear” or “obvious” under current law and the error must “affect substantial rights” in that it affected the outcome of the proceedings. Id. This Court must now balance between the Government’s failure to [1155]*1155give notice and Ramirez-Lopez’s failure to object and determine whether the district court’s decision in admitting the evidence was in plain error.
This Court has held that a denial of a motion for a mistrial error may be deemed harmless and not an abuse of discretion, when based on allegedly improper evidence of a defendant’s past actions under 404(b), if the defendant failed to object contemporaneously or to move to strike the testimony. United States v. Guerrero, 756 F.2d 1342, 1347-48 (9th Cir.1984). Accordingly, since Ramirez-Lopez failed to object contemporaneously to Government lYitness Alvardo’s testimony regarding the threat, we find the district court’s decision to deny the motion for a new trial was not in error.
B. Did the District Court Err in Refusing to Grant a Mistrial in Light of the Government Witness Revealing to the Jury That a Member of the Group Died?
Prior to the trial, the district court had ruled that the fact a member of the group had died during the crossing was extremely prejudicial and, subsequently, precluded any mention of it at trial. Although the witnesses had been told to make no mention of the deceased member, in the course of his examination at trial, in response to an unrelated question, Government witness Alvardo made a nondescript statement that a member of the group had died. At sidebar, Ramirez-Lopez subsequently moved for a mistrial. The district court found Alvardo’s statement to be nondescript and denied his motion. Ramirez-Lopez neither moved for the testimony to be stricken nor did he ask for a cautionary instruction. In his brief, he cites no case law in support of his position that the extreme prejudicial nature of the evidence required a mistrial at the time and requires reversal now.
This Court reviews the district court’s rulings on objections for abuse of discretion. United States v. Ortland, 109 F.3d 539, 543 (9th Cir.1997). Given that the line of questioning by the Government was not intended to place emphasis on the deceased member and the statement was made inadvertently, we find that the district court did not abuse its discretion in denying the motion for a mistrial.
C. Prosecutorial Misconduct by False Assertions During Closing Arguments
On appeal, Ramirez-Lopez contends that the district court erred when it allowed the Government to commit prose-cutorial misconduct during closing argument. A district court’s rulings on objections to alleged prosecutorial misconduct are reviewed for an abuse of discretion. United States v. Sarkisian, 197 F.3d 966, 988 (9th Cir.1999). Specifically, Ramirez-Lopez alleges that during closing argument, the Government made statements that (1) defense witnesses had been threatened; (2) there was a criminal organization involved in the case, and that Ramirez-Lopez was part of that organization; and (3) the Government incorrectly asserted that defense counsel had failed to ask a crucial question when, in fact, he had. Ramirez-Lopez contends that these statements, in total, amounted to prosecutorial misconduct. The Government concedes that it misstated the fact that defense counsel had not asked a crucial question when, in fact, he had, therefore committing prosecutorial misconduct. But the government contends this error to be harmless.2
Regarding the first contention that the defense “witnesses” had been [1156]*1156threatened, Ramirez-Lopez objected on the grounds that there was no evidence of this during the trial. In response, the Government makes a conclusory statement saying that since Ramirez-Lopez did threaten a witness, it was appropriate for the Government to make the argument that “witnesses” had been threatened. Granted there was evidence that Ramirez-Lopez did threaten one of the Government’s witnesses, but to expand that evidence to argue that Ramirez-Lopez threatened more than one witness is prose-cutorial misconduct.
As to the second contention that Ramirez-Lopez was a part of a larger organization, the Government states that evidence was presented at trial revealing that this smuggling service was being provided at a cost, that the group was going to Los Angeles and points north and that they did not make any arrangements with Ramirez-Lopez nor were they going to pay him. From this evidence, the Government inferred that Ramirez-Lopez was part of a larger organization. As the Government’s statements regarding a larger organization were based upon reasonable inferences from the evidence, we find that the district court did not abuse its discretion in overruling the Ramirez-Lopez’s objection as to that issue. United States v. Cabrera, 201 F.3d 1243, 1250 (9th Cir.2000); United States v. Nash, 115 F.3d 1431, 1439 (9th Cir.1997).
Although some of the statements made during the Government’s closing arguments can be construed as prosecutorial misconduct, ultimately, this Court must decide whether Ramirez-Lopez’s due process rights were so violated by prosecuto-rial misconduct it would render a trial “fundamentally unfair.” Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). The appellate court must review the record “to determine whether the prosecutor’s remarks ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Hall v. Whitley, 935 F.2d 164, 165 (9th Cir.1991) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). In reviewing the record in the light of these standards, we cannot conclude that the Government’s prosecutorial misconduct “so infected the trial with unfairness” that Ramirez-Lopez suffered a violation of his due process rights. At best, the prosecu-torial conduct was harmless error. The jury was present throughout the trial and would have been capable, amongst themselves, to ascertain what was said at trial and weigh the Government’s closing arguments accordingly. Therefore, we find that the district court did not abuse it discretion regarding prosecutorial misconduct rulings during closing arguments.
III. Did the District Court Err by Not Reversing Ramirez-Lopez’s Conviction in Light of the Cumulative Error That Occurred at Trial?
Ramirez-Lopez argues that even if no single error warrants a reversal, the cumulative effect of these errors at trial so prejudiced him that the only cure, when viewed overall, is reversal. In some cases, although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a Defendant. U.S. v. Frederick, 78 F.3d 137 (9th Cir.1996) (citing United States v. Green, 648 F.2d 587 (9th Cir.1981)). Where there are a number of errors at trial, “a balkan-ized, issue-by-issue harmless error review” is far less effective than analyzing the overall effect of all the errors in the context of the evidence introduced at trial against the defendant. United States v. Wallace, 848 F.2d 1464, 1476 (9th Cir.1988). Finally, “whether the alleged errors prejudiced the [defendant’s right] to a [1157]*1157fair trial depends in turn upon the strength of the Government’s . [case] against [him; ] the stronger the prosecution’s case, the less likely that a defendant would be prejudiced by error or misconduct.” United States v. Nadler, 698 F.2d 995 (9th Cir.1983).
In the present case, alleged errors at trial that may be considered toward claims of cumulative error are (1) the prosecutorial misconduct during closing argument; (2) the testimony of the government witness being threatened; and (3) the testimony that a member of the group had died during the border crossing. A review of the record reveals that the Government had a relatively strong case against Ramirez-Lopez. They had testimony of agents who interacted and observed Ramirez-Lopez; they had testimony of witness Sheila Sada, who stated that, from her observation, Ramirez-Lopez conducted himself like he was the leader; and they had members of the border crossing party testifying that Ramirez-Lopez guided them through the mountains. Balancing any errors that were committed at trial against the strength of the Government’s case, we find that any cumulative error was harmless error at best and does not warrant a reversal of his conviction.
IV. Ramirez-Lopez’s Motion to Dismiss the Indictment Based on the Unconstitutionality of § 1324 Under Apprendi.
Ramirez-Lopez moved to dismiss the indictment based on the unconstitutionality of § 1324 under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He alleges that the statute sets out the substantive crime separately from the possible penalties and permits increased penalties in certain circumstances. We review the district court’s denial of the claim de novo. United States v. Jones, 231 F.3d 508, 513 (9th Cir.2000).
This argument is wholly without merit. This case does not come within the literal terms of Apprendi, nor its reasoning, be-cahse this case does not involve sentencing factors to be decided by a judge that increase the penalty beyond the statutory maximum. Id., 530 U.S. at 490, 120 S.Ct. 2348.
V. Is § 1324(a)(l)(B)(iv) Unconstitutionally Vague?
Ramirez-Lopez contends that 8 U.S.C. § 1324(a)(2) is unconstitutionally vague because there is no mens rea attached to the “resulting in ... death” factor. The district court held that the relevant subsection was not unconstitutionally vague. We review de novo. Jones, 231 F.3d at 513. Section 1324 proscribes alien smuggling and provides that, when the smuggling “result[s] in the death of any person,” increased penalties will apply.3 8 U.S.C. § 1324(a)(l)(B)(iv>. The Supreme Court has held “that, as a matter of due process, a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, or is so indefinite that it [1158]*1158encourages arbitrary and erratic arrests and convictions, is void for vagueness.” Colautti v. Franklin, 439 U.S. 379, 390, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (internal quotation marks and citations omitted). Ramirez-Lopez argues that, because the “resulting in ... death” portion of the statute has no explicit mens rea requirement, it is void for vagueness. According to Ramirez-Lopez, a person charged with violation of that subsection could be subject to increased penalties even if the resulting death had nothing to do with the smuggling. Ramirez-Lopez’s argument lacks merit.
Although we have held that “criminal offenses requiring no mens rea have a generally disfavored status,” United States v. Nguyen, 73 F.3d 887, 890 (9th Cir.1995) (citations and internal quotation marks omitted), we have found that section 1324 does have a mens rea requirement, namely that the alleged smuggler intended to violate the immigration laws. Id. at 894.
In Nguyen, this Court has stated that, We start from the basic premise that the definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute. Thus, in determining what mental state is required to prove a violation of [subsection (a)(l)(B)(iv)], the focus of our inquiry is the intent of Congress. Id. at 890 (internal quotation marks and citations omitted).
Moreover, “in determining the intent of Congress, we look first to the language of the statute.” Id. Here, the language of the subsection at issue indicates that it does not have a mens rea requirement, whereas accompanying subsections do have mens rea requirements. Compare 8 U.S.C. § 1324(a)(l)(B)(iv) with 8 U.S.C. § 1324(a)(l)(B)(i). In such circumstances, it is proper to conclude that subsection (a)(l)(B)(iv) does not have a separate mens rea requirement. United States v. Rodriguez-Cruz, 255 F.3d 1054, 1059 (9th Cir.2001). Therefore, the only mental state required under subsection (a)(l)(B)(iv) is an intent to violate the immigration laws and knowledge that the individuals being smuggled are illegal aliens. See Nguyen, 73 F.3d at 894. See also United States v. Matus-Leva, 311 F.3d 1214 (9th Cir.2002) (holding for these reasons that the lack of a separate mens rea requirement in subsection (a)(l)(B)(iv) does not render it void for vagueness).
Contrary to Ramirez-Lopez’s argument, subsection (a)(l)(B)(iv)’s lack of a separate mens rea requirement does not render that portion of the statute void for vagueness. First, it is clear from the statute’s use of the word “resulting” that a defendant would not be subject to an increased penalty in a case where a death occurred in the course of smuggling but was totally unrelated to the smuggling. The term “resulting” unequivocally incorporates a causation requirement and thus puts persons of ordinary intelligence on notice that increased penalties may apply if they allow those they are smuggling to be exposed to life-threatening conditions during the smuggling process. Second, there is no danger that this subsection will chill constitutionally-protected conduct, cf. Franklin, 439 U.S. at 396, 99 S.Ct. 675, or that it will be used to subject persons engaging in wholly innocent conduct to criminal liability, cf. Nguyen, 73 F.3d at 893. Subsection (a)(l)(B)(iv) only provides increased penalties to those who have criminally smuggled aliens intending to violate the immigration laws. It thus reaches no constitutionally-protected or innocent conduct. We reject Ramirez-Lopez’s vagueness challenge and affirm the district court in all respects.
[1159]*1159VI. Did the District Court Err in Applying an Eight-Level Upward Adjustment under the Sentencing Guidelines?
Under section 2Ll.l(b)(6)(4), a court may apply an eight-level upward adjustment to the sentence if any person died in the course of the offense. U.S.S.G. § 2Ll.l(b)(6)(4). This Court has suggested that a mens rea of recklessness is required to impose an enhancement under section 2Ll.l(b)(6)(4). Rodriguez-Cruz, 255 F.3d at 1059. At sentencing, the district court found that Ramirez-Lopez had acted recklessly. Moreover, the circumstances of the smuggling here appear to be similar to those in Rodriguez-Cruz, although there is less factual detail here. 255 F.3d at 1057-58. The present circumstances are also similar to the case of United States v. Herreror-Rojas, wherein the district court also granted, and this Court affirmed, an upward adjustment under U.S.S.G. § 2L1.12(b)(5) for intentionally or recklessly creating substantial risk of serious bodily injury or death. 243 F.3d 1139 (9th Cir.2001). Therefore, we find that the district court properly relied on section 2Ll.l(b)(6)(4) of the federal sentencing guidelines in imposing an eight-level upward adjustment because a person died in the course of the offense.
VII. Did the District Court err by adjusting Ramirez-Lopez’s Offense Level Upwards Two Levels Based on Obstruction of Justice?
Ramirez-Lopez contends that the two-level enhancement for obstruction of justice based on testimony at trial that Ramirez-Lopez threatened a witness prior to trial was no more than mere accusation and should not be relied upon for an upward departure. Ramirez-Lopez further states that the Government’s witness Alvarado was shown to be untrustworthy at trial when he allegedly lied on the stand in response to defense counsel’s questions.
The district court’s upward adjustment for obstruction of justice under § 3C1.1 is reviewable for clear error. United States v. Christman, 894 F.2d 339, 342 (9th Cir.1990). The district court’s factual findings in the sentencing phase are reviewed for clear error, but must be supported by a preponderance of the evidence. United States v. Fox, 189 F.3d 1115, 1118 (9th Cir.1999). U.S.S.G. § 3C1.1 allows for a two-level enhancement of Ramirez^-Lopez’s base offense level, if the Court finds that the Ramirez-Lopez “willfully obstructed or impeded or attempted to impede the administration of justice during the investigation, prosecution or sentencing of the instant offense.” U.S.S.G. § 3C1.1, comment note 4(a) specifically includes “threatening.”
The district court made a finding that Ramirez-Lopez did threaten the witness by wagging his finger and that it was reasonably inferable that the conduct was intended to influence the testimony. We find that the district court’s decision to give Ramirez-Lopez a two-level enhancement was not clear error, given the testimony presented at trial.
AFFIRMED.