United States Court of Appeals
For the Eighth Circuit
United States of America, Appellee,
Angela Jane Johnson, Appellant.
Appeal from the United States District Court for the
Northern District of Iowa.
Submitted: February 14, 2007
Filed: July 30, 2007
Before WOLLMAN, BYE, and SMITH, Circuit Judges.
WOLLMAN, Circuit Judge. A federal jury found Angela
Johnson guilty of aiding and abetting the murder of five individuals
while working in furtherance of a continuing criminal enterprise
(CCE), violations of 21U.S.C. § 848(e)(1)(A) and 18U.S.C. § 2, and
five counts of aiding and abetting the killing of these individuals
while engaging in a drug conspiracy, also in violation of 21U.S.C. §
848(e)(1)(A) and 18U.S.C. § 2. The jury voted to impose the death
penalty for four of these murders and voted to impose a sentence of
life in prison for the fifth murder, resulting in a total of eight
death sentences and two life sentences. Following her convictions,
Johnson filed a motion in arrest of judgment, a motion for acquittal,
and a motion for a new trial all of which were denied by the
district court1 in a comprehensive memorandum opinion.
See United States v. Johnson, 403 F. Supp. 2d 721
(N.D. Iowa 2005). Johnson appeals from her convictions and her
sentences, raising 28 issues.2 We remand the case so that the district
court may vacate five of her ten convictions. In all other respects,
As set forth in greater detail below, this case
revolves around five murders. In July of 1993, Johnson's boyfriend,
Dustin Honken, with Johnson's help, abducted and killed Greg
Nicholson, Lori Duncan (Nicholson's girlfriend), and Duncan's two
young daughters, Amber and Kandi. Nicholson, who had sold drugs for
Honken, was the central witness in a drug case against Honken. The
Duncans had the misfortune of being present when Honken and Johnson
arrived at their home to deal with Nicholson. Months later, Honken,
again with Johnson's assistance, murdered a second potential witness
against Honken, Johnson's former boyfriend, Terry DeGeus.
In 1992, Honken started manufacturing
methamphetamine with his friend Tim Cutkomp in Arizona. Honken's
brother, Jeff Honken, financed the operation.
Honken distributed the methamphetamine to Greg
Nicholson and Terry DeGeus, who were both drug dealers in Mason City,
Iowa. In early 1993, during one of Honken's trips to Mason City,
DeGeus sent Johnson, who was his girlfriend at the time, to deliver
either drug proceeds or methamphetamine to Honken. Johnson told Honken
that because DeGeus was using too much of the methamphetamine for his
own 1 The Honorable Mark W. Bennett, then Chief Judge, United States
District Court for the Northern District of Iowa.
2 One of the issues Johnson raises, the admission
of statements by Robert McNeese, has already been addressed by this
Court. See United States v. Johnson, 352 F.3d 339 (8th Cir. 2003);
United States v. Johnson, 338 F.3d 918 (8th Cir. 2003).
Accordingly, we will not revisit the issue here.
personal use, Honken should deal directly with Johnson instead.
Johnson and Honken began a romantic relationship and within six
months, Johnson became pregnant with Honken's child. In late February
or early March of 1993, Cutkomp moved to Iowa, but continued
participating in Honken's drug enterprise.
In March 1993, police began investigating Nicholson
and executed a search warrant for his residence, which led to the
discovery of a large amount of methamphetamine and money. Nicholson
agreed to cooperate with law enforcement and told agents that Honken
had supplied him with several pounds of methamphetamine over a period
of 10-11 months, for which he paid Honken a total of approximately
$100,000. On March 21, 1993, Nicholson met with Honken to deliver drug
proceeds. During their conversation, which was monitored by police,
they discussed past and future deliveries of methamphetamine. That
day, police arrested Honken and Cutkomp. In Honken's pocket, officers
found a note listing money owed to Honken by two individuals referred
to as "G-man" and "T-man." A receipt for the purchase of chemicals was
found in Cutkomp's pocket. After Honken was arrested, Jeff Honken
disposed of items from Honken's drug lab that Honken had kept in one
of Jeff Honken's storage sheds.
In April 1993, a federal grand jury indicted Honken
for conspiracy to distribute methamphetamine. Honken was released on
bond. Honken informed the court that he intended to plead guilty, and
a plea hearing was scheduled for July 30, 1993.
During June and July of 1993, Honken and Johnson
began searching for Nicholson.
On the evenings they looked for Nicholson, Johnson
would ask her friend, Christi Gaubatz, to babysit Johnson's daughter.
Honken and Johnson borrowed Gaubatz's car on these occasions so that
they would not be spotted by Nicholson. On July 7, 1993, Johnson
purchased a semi-automatic 9 mm assault pistol at a pawn shop about an
hour's drive from her home.3 The last time Johnson asked Gaubatz to
babysit so that she and Honken could look for Nicholson was July 24,
1993. That evening, Nicholson, Nicholson's girlfriend, Lori Duncan,
and Lori Duncan's two children, Kandi and Amber, were murdered.
Johnson later recounted the details of the murders
to various witnesses. The following recitation is drawn from these
accounts. Johnson knocked on the door of the Duncans' home and asked
if she could look at their telephone book. Johnson was carrying a
cosmetics demonstration bag and claimed that she had an appointment to
give a demonstration, but was uncertain of the address. She secured
entry into the house, with Honken apparently right behind her. There
was testimony that once the door was opened, Honken and Johnson
"rushed" the occupants. While Johnson and Honken were in the house,
one or both of them videotaped Nicholson making statements exculpating
Honken. At some point, Johnson went upstairs with Kandi and Amber and
had them pack up some of their things either to persuade the girls
that they were going on a trip or to convince any subsequent visitors
to the house that they had done so. Honken and Johnson bound and
gagged the adults with materials that either Honken or Johnson had
brought to the house and drove the victims to a wooded area. Honken
took the two adults out of the car and shot them in the head while
Johnson waited in the car with the children. The children were then
taken out of the car and shot as well. All four were placed in a
single grave that had been dug earlier.
As set forth below, their bodies were eventually
discovered years later.
After the murders, Honken provided his attorney
with the videotape in which Nicholson exculpated Honken. When Honken
appeared for his plea hearing, which took place five days after the
murders, he declined to plead guilty. His attorney told the prosecutor
that the case was not as strong as the government had believed. The
tape was eventually returned to Honken and never seen again.
With Nicholson missing, the government's attention
turned to DeGeus. On October 27, 1993, several individuals were
subpoenaed, including Johnson and DeGeus's friend, Aaron Ryerson.
Ryerson was questioned about possible connections between Honken and
DeGeus. After Ryerson spoke with DeGeus, DeGeus called Johnson and
told her what Ryerson had said to him about his time before the grand
jury. Nine days later, on November 5, DeGeus dropped his daughter off
at his parents' house and told them that he was going to meet with
Johnson. By this time, DeGeus suspected that something may have
happened to Nicholson, and he was concerned that he might share
Nicholson's fate. Although DeGeus knew that Johnson was involved with
Honken, he apparently agreed to meet with her because he still had
strong feelings for her. DeGeus was murdered that night. The evidence
indicates that DeGeus was either shot by Honken and then beaten with a
baseball bat or beaten first and then shot.4 Following DeGeus's
disappearance, Johnson gave conflicting reports to police and others
about the night he disappeared, telling some individuals that she had
not seen him that night and telling others that she had seen him, but
that he had left after they had spoken. During the fall of 1993,
Gaubatz found a bag containing a large black handgun, which had a
silencer attached to it, in her closet. Upset by this discovery,
Gaubatz called Johnson, who retrieved the weapon.
In March 1995, the federal drug charges against
Honken were dismissed. In 1995, Honken enlisted the assistance of Dan
Cobeen to help with the methamphetamine operation, but before Cobeen
was allowed to participate, Honken took him to see Johnson for her
approval. Unbeknownst to Honken or Johnson, however, Cobeen was
cooperating with law enforcement and provided the authorities with
information about the methamphetamine operation.
On February 7, 1996, before Honken and his
associates were able to produce methamphetamine, law enforcement
agents executed a search warrant for Honken's home, whereupon they
seized items related to the production of methamphetamine.
Two months later, the government brought drug
charges against Honken and Cutkomp. After Honken's arrest, Honken and
Johnson discussed killing witnesses, including Cobeen and law
enforcement agents. Cutkomp testified that Honken was reluctant to
involve Johnson in any efforts to kill Cobeen because she was a "hot
head and just wanted to go do just do it." Cutkomp was also worried
about Johnson pushing Honken to follow through with the plans. Honken
pled guilty to drug charges in 1997. Around the time of the sentencing
hearing, Johnson called Jeff Honken and yelled, "[I]f Dustin wasn't
going to be able to see his kids she was going to make sure [Jeff
Honken wasn't] going to be able to see [his]." Johnson was charged
with the murders in July 2000 and taken to the Benton County, Iowa,
Jail, where she met another inmate, Robert McNeese. McNeese convinced
Johnson that he was connected to the mob and that he could find an
inmate already serving a life sentence who would confess to the
murders. He told her that all he needed was information about the
crimes so that this inmate could convince the authorities of his
involvement. Johnson obliged, providing maps depicting the location of
the victims' bodies and information about how they were killed.
McNeese then provided this information to the authorities. Using the
maps, officers found Nicholson and the Duncan family in a single
grave. The two adults were found bound and gagged and had been shot
multiple times, suffering gunshots to the head.
DeGeus's body was found a few miles away in a field
behind an abandoned house.
He had suffered multiple gunshot wounds, and his
skull had been fractured into dozens of pieces.
Johnson's trial was trifurcated into three phases:
a "merits" phase, in which the jury found her guilty of the murders,
an "eligibility phase," in which the jury determined that she was
eligible for the death penalty, and a "selection phase," in which the
jury voted for the death penalty for Johnson's participation in the
deaths of Lori Duncan, Amber Duncan, Kandi Duncan, and Terry DeGeus.
The jury voted for life imprisonment for Johnson's participation in
Greg Nicholson's murder. In a separate trial, Honken was also
convicted of the murders, but Honken, unlike Johnson, received life
sentences for the murders of Lori Duncan and DeGeus.
As indicated earlier, Johnson raises 28 issues on
appeal. We will discuss in detail only those issues that we believe
merit extended treatment, addressing the issues in roughly the same
order as Johnson has presented them.
1. The proportionality of Johnson's death
sentences under the Eighth Amendment
Johnson argues first that the district court erred
in denying her motion to strike the death penalty from the indictment.
She contends that because Honken, the principal, received life
sentences for the murders of DeGeus and Lori Duncan, imposing the
death penalty for their murders upon Johnson, who had only aided and
abetted the killings, would be a disproportionate punishment, in
violation of the Eighth Amendment. She also contends that because she
was a mere aider and abettor whose conduct did not lead to the deaths
of the victims, she was ineligible for the death penalty for any of
the murders. Johnson provides little support for her contention that a
district court may strike the death penalty from the indictment
despite the government's compliance with the statutory prerequisites
for seeking the death penalty. Nevertheless, because Johnson also
appears to articulate a freestanding Eighth Amendment claim, we will
address the merits of her contention that the imposition of the death
penalty would constitute cruel and unusual punishment.
We do not believe that the disparity between
Honken's and Johnson's sentences violates the Eighth Amendment. While
the Supreme Court has "occasionally struck down punishments as
inherently disproportionate, and therefore cruel and unusual," Pulley
v. Harris, 465 U.S. 37, 43 (1984), the Court's review has
traditionally entailed "an abstract evaluation of the appropriateness
of a sentence for a particular crime." Id. at 42-43. In other words,
traditional proportionality review hinges on whether a particular kind
of crime warrants a particular punishment. For example, the Court has
concluded that imposing the death penalty for the rape of an adult
woman "is grossly disproportionate and excessive punishment for the
crime of rape and is therefore forbidden by the Eighth Amendment as
cruel and unusual punishment." Coker v. Georgia, 433 U.S. 584, 592
(1977). Similarly, the Court has determined that the death penalty is
a disproportionate penalty for a defendant who is guilty of felony
murder, but who did not kill, attempt to kill, or intend or
contemplate that a killing would occur. Enmund v. Florida, 458 U.S.
782, 801 (1982).
Johnson contends that the Eighth Amendment requires
not only proportionality between a sentence and a particular category
of crime, but also proportionality between codefendants' sentences. We
disagree. The Supreme Court has rejected similar contentions, noting
in McCleskey v. Kemp, 481 U.S. 279, 306-07 (1987), that a defendant
cannot "prove a constitutional violation by demonstrating that other
defendants who may be similarly situated did not receive the death
penalty." Id.; see also United States v. Chauncey, 420 F.3d 864, 876
(8th Cir. 2005) (remarking that "a defendant's sentence is not
disproportionate merely because it exceeds his codefendant's
sentence"), cert. denied, 126 S. Ct. 1480 (2006). It bears mention,
too, that although we assume that the government presented similar
evidence in both Honken's and Johnson's trials, the evidence may have
differed slightly. In particular, Johnson has not apprised us of the
mitigation evidence Honken presented in his trial.
Two juries hearing similar, but not identical,
evidence may well reach different conclusions regarding the proper
penalty for their respective defendants. In addition, different
verdicts may permissibly reflect not only differences between the
facts presented at trial, but differences between the juries
themselves. "Individual jurors bring to their deliberations qualities
of human nature and varieties of human experience, the range of which
is unknown and perhaps unknowable." McCleskey, 481 U.S. at 310-11
(citation and quotation marks omitted). One cannot expect that two
different juries each of which is composed of citizens with diverse
backgrounds and values must necessarily reach the same verdict.
Johnson contends that Enmund supports the
proposition that courts "must evaluate a defendant's culpability both
individually and in terms of the sentences of codefendants and
accomplices in the same case." (Appellant's Br. at 19). Johnson's
reliance on Enmund is misplaced. In Enmund, two people were murdered
during the course of a robbery while Enmund was sitting nearby in a
car, waiting to help the robbers escape. Enmund was not present during
the murders, did not intend that the victims be killed, and had not
anticipated that "lethal force would or might be used if necessary to
effectuate the robbery or a safe escape." Enmund, 458 U.S. at 788.
Both Enmund and the codefendants who had actually committed the
murders were sentenced to death. The Supreme Court concluded that a
death sentence "is an excessive penalty for the robber who, as such,
does not take human life," id. at 797, and that the death penalty was
a disproportionate penalty for Enmund because he did not "kill,
attempt to kill, or intend that a killing take place or that lethal
force will be employed." Id. at 797. Enmund thus holds that the death
penalty is too harsh a penalty for a certain category of crime.5 In
sum, we do not believe that Enmund 5 Johnson's interpretation of
Enmund apparently rests on a single passage in which the Court remarks
that it was improper for Enmund to be treated as harshly as his more
culpable codefendants. Enmund, 458 U.S. at 798. We do not believe that
this isolated comment was intended to require proportionality between
codefendants' sentences. Instead, the Court was making the more
unexceptional observation that those who kill or intend to kill, such
as Enmund's codefendants, are, as a class, more culpable and more
deserving of greater punishment than those like Enmund, who do not.
Moreover, the Court stated only a few lines earlier that the "focus
must be on [Enmund's] culpability, not on that of those who committed
the robbery and shot the assists Johnson, and we reject her contention
that the disparity between her sentence and Honken's violates the
Eighth Amendment. See Hatch v. Oklahoma, 58 F.3d 1447, 1466-67 (10th
Cir. 1995) (holding that the Eighth Amendment does not require
codefendants' sentences to be proportional to one another).
Johnson also argues that the death penalty was
disproportionate under Enmund and Tison v. Arizona, 481 U.S. 137
(1987), because she was only minimally involved in the murders, the
deaths did not result from her actions, and she had not foreseen that
life would be taken. We conclude that these contentions are
unavailing. First, there was evidence that the killings resulted from
her substantial participation in the murders; namely, that she
procured the murder weapon, participated in the hunt for Nicholson,
employed a ruse so that she and Honken could gain entry to the
Duncans' residence, bound and gagged at least one of the victims, and
exploited her relationship with DeGeus to lure him to the remote
location where he was killed. There was thus sufficient evidence that
Johnson was an essential participant in the murders.
There was also evidence that she intended that the
killings occur. First, the jury reasonably rejected Johnson's
suggestion that she had, at most, intended to participate in kidnaping
Nicholson and the Duncans. Nicholson was a potential witness; if he
remained alive there would be a danger that he might recant the
exculpatory remarks he made about Honken in the videotape. The Duncans
were witnesses to Honken's and Johnson's treatment of Nicholson. To be
efficacious for Honken's and Johnson's purposes, a kidnapping would
have necessarily constituted an involved, long-term affair. There was
no evidence that any such scheme was in the works.6 As for DeGeus's
murder, the jury could have concluded that Johnson lured DeGeus to a
victims, for we insist on individualized consideration as a
constitutional requirement in imposing the death sentence." Id.
(citation and quotation marks omitted).
6 Although Johnson had the girls pack some things,
this was a ruse to convince either the girls or others that they were
going away somewhere. secluded location where Honken could kill him,
particularly in light of the fact that Johnson knew that Honken had
killed Nicholson and the Duncans months earlier.
2. Federal Rule of Criminal Procedure 24(b) and
Johnson next argues that Federal Rule of Criminal
Procedure 24(b) violates her equal protection rights. Under Fed. R.
Crim. P. 24(b), defendants in non-capital felony cases are entitled to
ten peremptory challenges, whereas the government receives six
challenges. In a capital case, however, both the defendant and the
government receive twenty peremptory challenges. Fed. R. Crim. P.
Johnson argues that Rule 24(b) violates her equal
protection rights because defendants in non-capital cases have a more
favorable ratio of peremptory challenges vis-á-vis the government than
do defendants in capital cases. Johnson's argument is unavailing.
We reject first Johnson's suggestion that because
Rule 24(b) burdens a fundamental constitutional right strict scrutiny
applies. Peremptory challenges are not "of federal constitutional
dimension." United States v. Martinez-Salazar, 528 U.S.
304, 311 (2000). Instead, the right to peremptory
challenges "is in the nature of a statutory privilege," Frazier v.
United States, 335 U.S. 497, 506 n.11 (1948), provided to help secure
the defendant's constitutional right to a fair trial. Id. at 505. We
also reject Johnson's argument that Rule 24(b) fails rational-basis
review. Johnson contends that if defendants need more peremptories
than the government in noncapital cases, then defendants also need
more peremptories than the government in capital cases. Rational-basis
review, however, does not require a perfect or exact fit between the
means used and the ends sought. Banker's Life & Cas. Co. v. Crenshaw,
486 U.S. 71, 85 (1988) (noting that a statute need not be "perfectly
calibrated in order to pass muster under the rational-basis test").
The legislature is not required to calculate with precision the exact
number of challenges necessary to help secure the defendant's right to
a fair trial. Nor is the legislature required to arrive at a perfect
defendant-to-government ratio. Although the government does not
squarely proffer a reason for the disparity between the ratio of
government-to-defendant challenges in capital and non-capital cases,
its briefing suggests, and the progress of this case confirms, that in
a capital case, the venire panel's views on the death penalty become
the primary pivot around which jury selection turns. The government
and the defense arguably have an equal interest in exploring the
jurors' attitudes. Rule 24(b) may not be "perfectly calibrated,"
perhaps, but it passes rational-basis muster.
3. Johnson's Sixth Amendment rights and her
right to peremptory challenges
Johnson argues that her Sixth Amendment right to an
impartial jury was violated because the district court erroneously
denied her for-cause challenges to more than a dozen jurors. She also
contends that the district court's error impaired her right to
exercise peremptory challenges because she was forced to expend a
number of her peremptory challenges on jurors who should have been
excused for cause.
A. Sixth Amendment argument
Because Johnson exercised peremptory challenges to
prevent all the challenged jurors except juror 600 from sitting on her
jury, juror 600 is the only juror about whom she can raise a Sixth
Amendment objection. See United States v. Nelson, 347 F.3d 701, 710
(8th Cir. 2003) (claim that district court erred by not excluding four
penalty-phase jurors for cause lacked merit because the defendant had
used peremptory challenges to prevent the challenged jurors from
sitting on the jury); United States v. Paul, 217 F.3d 989, 1004 (8th
Cir. 2000) (noting that the defendant's claim on appeal concerning
district court's denial of challenge for cause was unavailing because,
inter alia, the three challenged jurors did not sit on the jury).
The district court did not abuse its discretion in
denying Johnson's motion to strike juror 600. A venireperson may be
properly excluded from sitting in a capital case if the venireperson's
views on capital punishment would "prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath." Wainwright v. Witt,
469 U.S. 412 , 424 (1985). "Because the trial judge is in
the best position to analyze the demeanor and credibility of a
venireman, we will not reverse a court's rulings absent an abuse of
discretion." United States v. Ortiz, 315 F.3d 873, 888 (8th Cir.
2002); see also Uttecht v. Brown, 2007 U.S. Lexis 6965, 12-17 (June 4,
2007) (concluding that a trial judge's determinations regarding
substantial impairment should be accorded deference). Johnson contends
that juror 600 should have been struck because he stated that his
empathy for the victim's family and the fact that the crime involved
children could affect his judgments about the case.
She also asserts that juror 600 would not consider
any deals that a prisoner may have received or might hope for in
weighing the prisoner's testimony. Although the juror gave some
equivocal answers and acknowledged the possibility that his judgment
could be affected by some aspects of the case, the district court
concluded that juror 600 could be fair and impartial and that his
statements reflected the "reasonable self doubts" of a conscientious
and reflective person. Moreover, although he initially indicated
little interest in whether witnesses hoped for sentencing reductions
in exchange for their testimony, juror 600 stated that he would
consider the motivations of witnesses in testifying and acknowledged
the "real possibility" that some witnesses might lie to obtain some
sort of benefit. We therefore cannot say that the district court
abused its discretion in denying Johnson's for-cause challenge to this
B. Impairment of her right to exercise
Johnson contends also that her statutory
entitlement to twenty peremptory challenges was impaired because she
was, as she puts it, forced to "waste" 60% of her peremptory
challenges on jurors who should have been stricken for cause. We
disagree. In Martinez-Salazar, the Supreme Court held that a
defendant's right to exercise peremptory challenges is not impaired
when the defendant elects to use her challenges to remove jurors who
should have been stricken for cause. Martinez Salazar, 528 U.S. at
317. In reaching this conclusion, the Court noted that peremptory
challenges are "auxiliary" to the right of an impartial jury and that
they are one means of ensuring a fair trial, but are not themselves of
"federal constitutional dimension." Id. at 311; see also Frazier, 335
U.S. at 505 ("the right [to peremptory challenges] is given in aid of
the party's interest to secure a fair and impartial jury . . .").
Accordingly, Johnson did not, to use her phrase,
"waste" her peremptory challenges.
Instead, she "used the challenge[s] in line with a
principal reason for peremptories: to help secure the constitutional
guarantee of trial by an impartial jury." MartinezSalazar, 528 U.S. at
316.7 Johnson suggests that her case is distinguishable from
Martinez-Salazar because unlike Martinez-Salazar, who "did not ask for
a makeup peremptory or object to any juror who sat," id. at 318
(Souter, J., concurring), Johnson requested additional peremptory
challenges and objected to juror 600. She also asserts that her case
is distinguishable, both from Martinez-Salazar, as well as cases
applying MartinezSalazar, because of the sheer number of challenges
she expended in removing jurors that she thought should have been
removed for cause. We do not consider this sufficient reason to depart
from the Martinez-Salazar rule. The language used by the Court does
not suggest that the rule of law Martinez-Salazar enunciates hinges on
how many peremptory challenges the defendant exercised for curative
purposes or how the defendant would have otherwise employed her
challenges if she had not used them curatively. The constitutional
touchstone, we believe, is the right to a fair trial, and we are not
persuaded that Johnson has been deprived of this right. Nor has she
shown that her jury or the voir dire process was constitutionally
objectionable in any other 7 Nor can we agree that Johnson was
"forced" to use her challenges in this manner. As the Supreme Court
remarked, a defendant who must make a snap decision during jury
selection to either use a peremptory challenge to cure an erroneous
denial of a for-cause challenge or take her chances on appeal is
undoubtably faced with a difficult choice, but a "hard choice is not
the same as no choice." Martinez-Salazar, 528 U.S. at 315. Johnson
"received and exercised" all twenty of her peremptory challenges,
which is all "[s]he is entitled to under the Rule." Id. way. Because
Johnson received the twenty challenges to which she was entitled under
Rule 24, and because she has not shown that she was denied either the
right to a fair trial or any other constitutional right, we conclude
that her claim is unavailing.8 4. The denial of Johnson's request for
additional peremptory challenges The district court denied Johnson's
request for additional peremptory challenges beyond the twenty to
which she was entitled under Rule 24. Johnson contends that the denial
was improper because she needed the additional challenges to cure the
effects of pretrial publicity. Assuming for the sake of argument that
the district court had the authority to grant additional peremptory
challenges, we cannot discern any error in the denial of Johnson's
motion. Johnson was able to challenge for cause jurors adversely
affected by pretrial publicity and, if those challenges were denied,
exercise her peremptory challenges. She does not appear to allege that
any of the sitting jurors were prejudiced by pretrial publicity.
Moreover, as the district court noted, the responses to the juror
questionnaires indicated that the influence of pretrial publicity did
not appear likely to impair Johnson's ability to receive a fair trial.
Johnson, 403 F. Supp. 2d at 721, 768-69. If Johnson
had felt that the voir dire testimony of the jurors belied that
conclusion, she could have elected to renew her motion for a change of
venue during, or at the conclusion of, jury selection, but she did
not. Id. In light of the foregoing, we cannot say that the district
court erred in declining to provide Johnson with a greater number of
peremptory challenges than the 20 provided by Rule 24(b). 5. The
district court's exclusion of two jurors Johnson argues that the
district court erred in striking for cause jurors 458 and 769. When
juror 458 was asked if he would consider the death penalty an
appropriate punishment for an intentional murder, he responded, "I'd
have to say no," adding, "I believe in mercy too." Shortly thereafter
he stated, "Well, I think living with the guilt is penalty enough in
my opinion. You know, how much worse can it get?" He also remarked
that he would vote for a life sentence without the possibility of
parole 99% of the time. The district court's determination that this
juror was substantially impaired was not an abuse of discretion.
Juror 769 gave markedly inconsistent and equivocal
answers to the questions posed to her in the juror questionnaire and
during voir dire, and twice expressed reservations about her ability
to sign a verdict slip that would have the practical effect of
sentencing someone to death. The district court remarked that juror
769 "was the quintessential example of a juror whose answers were so
equivocal, ambiguous, and inconsistent, that the court was entitled,
if not absolutely required, to remove her for cause." Johnson, 403 F.
Supp. 2d at 784. We cannot say that excluding this juror constituted
an abuse of discretion.
6. The prosecutor's statements to the jurors
that the jurors were permitted to give no weight to various mitigating
Johnson contends that the district court erred in
allowing the prosecutor to tell jurors during voir dire that, although
they were required to consider them, the jurors were permitted to give
certain mitigating evidence "no weight" in determining Johnson's
sentence. Johnson also asserts that the prosecutor improperly stated
during the selection-phase closing arguments that the jurors should
not give any weight to the fact that Johnson had no prior criminal
record. Sentencers "may determine the weight to be given relevant
But they may not give it no weight by excluding
such evidence from their consideration." Eddings v. Oklahoma, 455 U.S.
104, 114-15 (1982). A capital jury is not required "to give mitigating
effect or weight to any particular evidence." Paul, 217 F.3d at
999-1000 (citing Boyde v. California, 494 U.S. 370, 377 (1990)).
"There is only a constitutional violation if there exists a reasonable
likelihood that the jurors believed themselves precluded from
considering relevant mitigating evidence." Id. at 1000 (citing Boyde,
494 U.S. at 386).9 Based on our review of the voir dire transcript,
particularly those portions of the transcript to which Johnson draws
our attention, we conclude that the prosecutor's comments and
questions accurately reflected the law: jurors are obliged to consider
relevant mitigating evidence, but are permitted to accord that
evidence whatever weight they choose, including no weight at all.
We also reject Johnson's contention that the
prosecutor improperly urged the jury to accord no weight to the fact
that Johnson had no prior criminal record. The prosecutor did not
suggest that the jury was permitted to exclude this factor from its
consideration. Instead, the prosecutor acknowledged that Johnson had
no prior criminal record, but suggested that this fact should be
accorded no weight because there was evidence that Johnson had
committed various crimes for which she had not been arrested or
charged.10 7. Sufficiency of the evidence Johnson argues that the
evidence was insufficient to show that the murders were committed in
furtherance of a conspiracy and that the government failed to
establish the elements of CCE murder.
A. Conspiracy Murder
Johnson asserts first that the murders could not
have been committed in furtherance of a drug conspiracy because the
conspiracy had ended in late 1992 when Cutkomp left Arizona and Honken
told his brother that he was going to stop producing methamphetamine.
This assertion is incorrect because, despite what Honken may have told
his brother, and despite Cutkomp's move to Iowa, the evidence,
including the evidence of the events culminating in Honken's March
1993 arrest, demonstrates that Honken and Cutkomp had in fact
continued their methamphetamine-related activities. Johnson also
suggests that the conspiracy terminated no later than March 1993, when
Honken and others were arrested and Nicholson began cooperating with
the authorities. A conspiracy may persist, however, "even if the
participants and their activities change over time, and even if many
participants are unaware of, or uninvolved in, some of the
transactions." United States v. Roach, 164 F.3d 403, 412 (8th Cir.
Here, in addition to the murders undertaken to
preserve the conspiracy, cf., United States v. Hamilton, 332 F.3d
1144, 1149-50 (8th Cir. 2003) ("Eliminating a witness to a murder at
the drug house could logically be seen to further the conspiracy by
making it less likely that the operation would be shut down as a
result of a murder investigation."), there was sufficient evidence to
support a finding that a conspiracy to manufacture and sell
methamphetamine, with Honken at its center, continued from 1992
through 1996, Honken's 1993 arrest notwithstanding. A couple of months
after Honken was arrested, Honken asked Cutkomp to obtain chemicals so
that Honken could produce more methamphetamine that Honken could sell
to pay off Nicholson or DeGeus. Although Cutkomp did not complete that
particular task, he testified that from the time of the disappearances
through about 1995, he occasionally assisted Honken in Honken's
attempts to manufacture methamphetamine. Cutkomp's participation also
included trips to purchase chemicals in 1995 and the disposal of
evidence in 1996. Johnson participated also. In addition to her role
in the murders, in 1994, Johnson supplied money to purchase chemicals,
and some of Honken's attempts to manufacture methamphetamine took
place at Johnson's home.
B. CCE Murder
Johnson also argues that the government failed to
prove the elements of CCE murder. To establish CCE murder, the
government must prove: 1) that an individual is engaged in or working
in the furtherance of a CCE; 2) that this person intentionally
commanded, induced, procured or caused the killing; 3) that the
killing actually resulted; and 4) that there was a substantive
connection between the killing and the CCE. See United States v.
Jones, 101 F.3d 1263, 1267 (8th Cir. 1996). Here, Johnson was charged
with aiding and abetting a CCE murder.11 Consequently, the district
court instructed the jury that the second element of the offense would
be met if Johnson aided and abetted the killing. The CCE alleged in
this case was the drug operation organized by Honken. To establish the
existence of this CCE, the government was required to prove: 1) that
Honken committed a felony violation of the federal narcotics laws; 2)
as part of a continuing series of three or more violations; 3) in
concert with five or more other persons; 4) for whom Honken was an
organizer, manager, or supervisor; 5) from which Honken derived
substantial income or resources. See United States v. Jackson, 345
F.3d 638, 645 (8th Cir. 2003) (citing United States v. Jelinek, 57
F.3d 655, 657 (8th Cir. 1995)).
Johnson alleges several infirmities in the
government's CCE murder case. She contends first that the CCE, like
the conspiracy, had ended before the murders took place, reiterating
the arguments she made regarding the conspiracy murder charge.
For essentially the same reasons stated above, we
conclude that this contention lacks merit. She also asserts that
Honken did not supervise five or more CCE participants.
In particular, she contends that two of the alleged
CCE participants, Nicholson and DeGeus, were not managed by Honken
because they had only a buyer-seller relationship with him.12 We
disagree. The "management element is established by demonstrating that
the defendant exerted some type of influence over another individual
as exemplified by that individual's compliance with the defendant's
directions, instructions, or terms." United States v. Possick, 849
F.2d 332, 336 (8th Cir. 1988). There was evidence that Nicholson and
DeGeus were not merely customers, but were directed by Honken in a
drug distribution scheme. They were often described as having sold
drugs "for" Honken, and the evidence indicates that Honken "fronted"
them the drugs, that they remitted some of their drug proceeds to
Honken, and that this was an ongoing relationship coordinated by
Possick, 849 F.2d at 336 (noting that although
merely fronting drugs to another person will not suffice to establish
supervision, supervision may be found where the defendant fronted
another individual drugs and instructed him how to arrange for
collection and payment of drugs); United States v. Apodaca, 843 F.2d
421, 427 (10th Cir. 1988) (explaining that drug dealers who were
fronted drugs by the defendant to whom they passed back a portion of
the proceeds from the drug sales were not mere "consumers"). The
quantity of drugs coupled with the ongoing relationship also suggests
that Nicholson and DeGeus were not merely Honken's customers. See
United States v. Prieskorn, 658 F.2d 631, 634-35 (8th Cir. 1981)
(noting that the large quantity of cocaine and evidence of an ongoing
relationship with suppliers indicated participation in conspiracy). We
also note that Nicholson stored drugs for Honken.
In sum, we conclude that Honken supervised
Nicholson and DeGeus and that the elements of CCE murder were
established.13 8. Admission of evidence relating to Honken's guilty
plea Johnson moved in limine for the exclusion of evidence pertaining
to Honken's 1997 guilty plea, conviction, and sentence. Although she
appears to agree that the fact of Honken's 1997 conviction was
relevant, she argued to the district court that neither Honken's
sentence nor the "particular crimes" with which Honken was charged and
to which he pled guilty were relevant. The government responded that
evidence of the specific charges was relevant to provide context for
statements that Honken made to Cutkomp and Cobeen, but agreed that the
sentence was not relevant. The district court ordered that evidence of
the sentence be excluded, but ruled that evidence pertaining to the
specific charges would be admitted. Accordingly, the government was
permitted to introduce exhibits 303 and 304, which reflected the
crimes with which Honken was charged, the sentences he received, and
the amount of methamphetamine for which he was held accountable. The
government was also allowed to introduce the transcript of Honken's
plea colloquy. During the meritsphase closing arguments, one of the
prosecutors stated, "There were two [violations] for which [Honken]
pled guilty, Exhibits 303 and 304. In the evidence in this case -and
you'll have them back in the jury room -- set forth his guilty plea
and conviction as to two federal felony drug convictions." Johnson
contends that the two exhibits should not have been admitted and that
the prosecutor improperly used this evidence of Honken's guilty plea
as substantive evidence of Johnson's guilt. Cf. United States v.
Rogers, 939 F.2d 591, 594 (8th Cir. 1991) (per curiam) ("Any time a
guilty plea of a co-offender is either directly or indirectly brought
into a trial, trial courts must ensure that it is not being offered as
substantive proof of the defendant's guilt."). We conclude that even
if these exhibits were improperly admitted or used for an improper
purpose, any error was harmless.
Although Johnson argues that the jury should not
have learned which specific crimes were involved, a reasonable juror
who heard the other trial evidence would have assumed that the crimes
in question involved methamphetamine. Similarly, the prospect of
prejudice was diminished because, even without evidence of the guilty
pleas, there was overwhelming evidence of Honken's participation in
methamphetamine-related crimes during the relevant period of time.
Finally, Johnson's defense did not center on whether or not Honken was
involved in drug crimes, but rather on whether Johnson had knowingly
participated in the murders.
9. Admission of bad acts evidence
Johnson argues next that the district court erred
in permitting the introduction of evidence pertaining to bad acts
committed subsequent to the murders, some of which took place years
after the killings. She asserts that these bad acts were either more
prejudicial than probative under Federal Rule of Evidence 403 or
constituted impermissible propensity evidence pursuant to Federal Rule
of Evidence 404(b). We disagree. Johnson was charged with murders
committed in furtherance of a methamphetamine conspiracy and a CCE
that allegedly extended from 1992 through 1998. Most of the bad acts
to which Johnson refers on appeal relate to Johnson's participation in
the production of methamphetamine or her attempts to influence
witnesses to Honken's methamphetamine offenses, which were relevant to
establish the existence of, and Johnson's involvement in, the
conspiracy or CCE.14 Indeed, one of the subsequent bad acts about
which Johnson complains, evidence that she possessed chemicals and
equipment related to the manufacture of methamphetamine at her home in
Clear Lake, Iowa, was one of the alleged predicate offenses.
Johnson devotes most of her discussion of this
issue to the admission of testimony by Rick Held, an acquaintance of
Honken's. Held testified that in 1998, a woman identifying herself as
Honken's girlfriend called him on the telephone and told him that
Honken did not need a "pup" (which evidently referred to a firearm
that Honken had asked Held to acquire for him) anymore. Johnson
suggests that this testimony should not have been admitted because
Honken had two girlfriends and thus the statement could not have been
properly attributed to Johnson. There was evidence, however, from
which the jury could infer that it was Johnson who made this call,
rather than another girlfriend. Having examined the record, we
conclude that admission of the other subsequent bad acts evidence was
proper as well.15 10. Admission of hearsay statements Johnson contends
that the admission of certain hearsay statements violated both her
confrontation rights as well as the Ex Post Facto Clause of the
Because most of the statements to which Johnson
objects were made by Nicholson and DeGeus, we will devote most of our
analysis to the admission of these statements.16 Nicholson's and
DeGeus's hearsay statements were admitted pursuant to the forfeiture
by wrongdoing doctrine as codified by Federal Rule of Evidence
804(b)(6). As we explained in United States v. Emery, 186 F.3d 921
(8th Cir. 1999), a defendant's confrontation rights under the Sixth
Amendment are "forfeited with respect to any witness or potential
witness whose absence a defendant wrongfully procures." Id. at 926.
"Hearsay objections are similarly forfeited under Fed. R. Evid.
804(b)(6), which excludes from the prohibition on
hearsay any `statement offered against a party that has engaged or
acquiesced in wrongdoing that was intended to, and did, procure the
unavailability of the declarant as a witness.'" Id. (quoting Fed.
R. Evid. 804(b)(6)). Forfeiture under Rule
804(b)(6) applies not only in the original cases for which the
declarant was an actual or potential witness, but also in any
prosecution pertaining to the wrongful procurement of the witness's
Id. In Emery, for example, the defendant murdered
the woman who was cooperating with law enforcement in a drug
investigation against him. Id. at 924-26. We concluded that Emery had
forfeited his hearsay and confrontation objections not only with
respect to "a trial on the underlying crimes about which he feared
[the victim] would testify," but also "in a trial for murdering her."
Id. at 926. A. Ex Post Facto Clause Johnson argues that the Ex Post
Facto Clause of the Constitution precludes the application of the
forfeiture by wrongdoing doctrine in her case because the rule of
evidence codifying the doctrine, Rule 804(b)(6), was enacted four
years after the murders took place. The argument lacks merit because
Rule 804(b)(6) reflects legal principles that were well and widely
recognized at the time of the murders. See Fed.
R. Evid. 804, notes of advisory committee on 1997
amendments (collecting cases).
Moreover, even if the enactment of Rule 804(b)(6)
had enlarged the category of admissible evidence in a criminal case,
we doubt that this would constitute an ex post facto violation. The Ex
Post Facto Clause prohibits, inter alia, the application of any "law
that alters the legal rules of evidence, and receives less, or
different testimony, than the law required at the time of the
commission of the offense, in order to convict the offender." Calder
3 U.S. 386 , 390 (1798) (opinion of Chase, J.). Laws that
"`simply enlarge the class of persons who may be competent to testify
in criminal cases' do not offend the ex post facto prohibition because
they do not . . . alter the degree or lessen the amount or measure of
proof necessary to convict the defendant." Palmer v. Clarke, 408 F.3d
423, 430-31 (8th Cir. 2005) (quoting Hopt v. Utah, 110 U.S. 574, 589
(1884)), cert. denied sub nom. Palmer v. Houston, 546 U.S.
1042 (2005). Accordingly, even if the enactment of
Rule 804(b)(6) had enlarged the class of admissible hearsay, this
expansion would not violate the Ex Post Facto Clause. We thus find
unavailing Johnson's ex post facto objection to Rule 804(b)(6).
B. Applicability of the Forfeiture by Wrongdoing
Johnson also contends that her case is
distinguishable from Emery and that the forfeiture by wrongdoing
doctrine is inapplicable because she did not endeavor to procure the
unavailability of any witnesses against her. She also contends that
the doctrine could not apply to her because she had been accused only
of aiding and abetting the murders. The question, therefore, is
whether the doctrine applies when a defendant aids and abets the
murder of a potential witness against another person.
We conclude that it does.
We observe first that the scope of the forfeiture
by wrongdoing doctrine under common law may differ from the version of
the doctrine established by Rule 804(b)(6). The Sixth Circuit in
United States v. Garcia-Meza, 403 F.3d 364 (6th Cir. 2005), noted that
although Rule 804(b)(6) may require that the defendant intend to
procure a witness's unavailability to testify, under the common law
forfeiture doctrine a defendant's confrontation rights may be
extinguished even if her misconduct was not specifically directed
toward rendering the witness unavailable. Id. at 370.
Because the requirements for forfeiture under Rule
804(b)(6) are arguably more stringent than those under the common law
version of the doctrine, a matter we need not and do not resolve
today, and because the statements at issue here must, in any case, be
admissible under the Federal Rules of Evidence (any forfeiture of
Johnson's confrontation rights notwithstanding), our analysis will
focus on the requirements of the Rule 804(b)(6).
The fact that Johnson may have only aided and
abetted the procurement of the witnesses' unavailability is of little
moment. If a defendant's role as an aider and abettor may constitute
sufficient participation in a murder to warrant the imposition of a
death sentence, such conduct should also suffice for the forfeiture of
hearsay and confrontation objections. In other words, it "would make
little sense to limit forfeiture of a defendant's trial rights to a
narrower set of facts than would be sufficient to sustain a conviction
and corresponding loss of liberty." United States v. Cherry, 217 F.3d
811, 818 (10th Cir. 2000); see also United States v. Carson, 455 F.3d
336, 364 (D.C. Cir. 2006) (suggesting that if members of a conspiracy
agree to kill potential witnesses against them, all of the members of
the conspiracy would be criminally responsible for resulting murders
and "there is no good reason why the murder should give any of them an
evidentiary advantage"), cert. denied, 127 S. Ct. 1351 (2007).
Furthermore, Rule 804(b)(6) applies when a
defendant has "engaged or acquiesced in wrongdoing" procuring a
witness's unavailability. We believe that this language encompasses
Johnson's substantial involvement in procuring the witnesses'
We also conclude that Rule 804(b)(6) applies to
Johnson even though she had worked to procure the unavailability of
potential witnesses against Honken rather than against herself.
"`Because the Federal Rules of Evidence are a legislative enactment,
we turn to the traditional tools of statutory construction in order to
construe their provisions. We begin with the language itself.'" United
States v. Gray, 405 F.3d 227, 241 (4th Cir. 2005) (quoting Beech
Aircraft Corp. v. Rainey, 488 U.S. 153, 163 (1988)), cert. denied,
546 U.S. 912 (2005). The words of Rule 804(b)(6) provide
only that the defendant must procure the unavailability of a witness
they do not specify the person against whom the unavailable witness
was to have testified. After all, the purpose of Rule 804(b)(6), as
the advisory committee to the Federal Rules of Evidence stated, was to
enact a "prophylactic rule to deal with abhorrent behavior which
strikes at the heart of the system of justice itself." Fed. R. Evid.
804(b)(6), notes of advisory committee on 1997 amendments (citation
and quotation marks omitted). Johnson's conduct was no less abhorrent
and no less offensive to "the heart of the system of justice itself"
because she procured the unavailability of witnesses against Honken
rather than against herself. Moreover, applying Rule 804(b)(6) in
Johnson's case is consonant with the equitable rationales for the
forfeiture by wrongdoing doctrine, which includes preventing
individuals from profiting from their own wrongdoing. Gray, 405 F.3d
at 242 (collecting cases and observing that "federal cases have
recognized that the forfeiture-by-wrongdoing exception is necessary to
prevent wrongdoers from profiting by their misconduct"). We also
observe that in conspiracy cases, witnesses' cooperation with the
government threatens not only the liberty of the particular
conspirators against whom the witness may testify, but the viability
of the conspiracy as a whole; and an investigation or prosecution that
might start with one conspirator may result in charges being levied
against other conspirators as well. In sum, it would make little sense
in a case such as this to parse the forfeiture doctrine as finely as
Johnson proposes. We conclude that the district court reasonably found
by a preponderance of the evidence that Johnson had forfeited her
confrontation and hearsay objections to the admission of statements by
Nicholson and DeGeus.17 11. Commentary on Johnson's post-arrest,
post-Miranda warnings silence During the government's merits-phase
closing arguments, one of the prosecutors argued that if Johnson had
been tricked by Honken into participating in the murders, as she
essentially claimed, she would have said so when she spoke about the
murders with various individuals. The prosecutor also displayed a
chart during closing argument that read as follows: Gaubatz: no claim
of innocence McNeese: no claim of innocence Bramow: no claim of
innocence S. Johnson & W. Jacobson: no claim of innocence Baca: no
claim of innocence Hoover: no claim of innocence Yager: no claim of
innocence Johnson contends that the prosecutor's remarks and his use
of the chart was tantamount to improper commentary on her failure to
testify and on her post-arrest silence. We disagree. We cannot see how
any of the prosecutor's remarks could be reasonably interpreted as a
comment on Johnson's decision to not testify. Johnson asserts that the
prosecutor's remarks implied that Johnson was under an obligation to
proclaim her innocence, but that plainly was not what the prosecutor
The prosecutor was contending instead that the jury
could infer, relying on its common sense understanding of human
motivations, that if Johnson had been duped by Honken, she would have
stressed that detail when she spoke with others about the crimes. As
for the chart, we do not believe that it constitutes either a direct
or indirect comment on Johnson's failure to testify. Cf. Graham v.
Dormire, 212 F.3d 437, 439 (8th Cir. 2000) (stating that a prosecutor
may not directly comment on a defendant's failure to testify and that
an indirect comment is impermissible if it manifests "the prosecutor's
intent to call attention to a defendant's failure to testify or would
be naturally and necessarily taken by a jury as a comment on the
defendant's failure to testify").
Nor was there improper commentary on Johnson's
Ordinarily, a defendant's post-arrest, post-Miranda
warnings silence may not be used against her. Doyle v. Ohio, 426 U.S.
610, 619-20 (1976). The reasons for this rule are two-fold: 1) such
silence may be nothing more than an arrestee's exercise of her
constitutional rights; and 2) because the Miranda warnings carry an
"implicit assurance" that an arrestee's silence will not be used
against her, using her silence would unfairly penalize her for relying
on these assurances. United States v. Frazier, 408 F.3d 1102, 1110
(8th Cir. 2005) (citing Doyle, 426 U.S. at 617-18), cert. denied, 126
S. Ct. 1165 (2006). We have observed, however, that the "`privilege
against compulsory self-incrimination is simply irrelevant to a
citizen's decision to remain silent when [s]he is under no official
compulsion to speak.'" Frazier, 408 F.3d at 1110 (quoting Jenkins v.
Anderson, 447 U.S. 231, 241 (1980) (Stevens, J., concurring)). In
other words, "in determining whether the privilege [to remain silent]
is applicable, the question is whether petitioner was in a position to
have his testimony compelled and then asserted his privilege, not
simply whether he was silent." Jenkins, 447 U.S. at 244 (Stevens, J.,
concurring). Thus, we concluded in Frazier that testimony regarding a
defendant's post-arrest, pre-Miranda silence does not necessarily
constitute a Doyle violation because the mere fact of arrest does not
itself give rise to a "government-imposed compulsion to speak"
triggering the assertion of an arrestee's Fifth Amendment privilege.
Frazier, 408 F.3d at 1111. Here, Johnson's silence was not an exercise
of her privilege to remain silent because she was under no official
compulsion against which such a privilege would be asserted. Nor is
there any reason to believe that Johnson was somehow relying on an
implicit assurance by the government that her silence would not be
used against her. Cf. Fletcher v. Weir, 455 U.S. 603, 606 (1982) (per
curiam) ("[W]e have consistently explained Doyle as a case where the
government had induced silence by implicitly assuring the defendant
that his silence would not be used against him."). In sum, as the
district court observed, "Johnson has not shown how, when, or why her
right to remain silent had attached as to any of these witnesses."
Johnson, 403 F. Supp. 2d at 828.18 12. Merits-phase jury instructions
Johnson's next claim of error concerns the district court's
instructions to the jury pertaining to the merits phase of the trial.
Johnson contends that the district court should
have given her proposed jury instruction informing the jury that a
mere buyer-seller relationship between Honken and others was not
sufficient to show that Honken managed or supervised these
individuals. We disagree. The district court's instructions informed
the jury that the prosecution was required to prove "that Dustin
Honken exerted some type of influence over five or more other persons,
as shown by these individuals' compliance with his directions,
instructions, or terms for performing the activities of the CCE." We
believe that these instructions adequately stated the law, as they
largely tracked our description of the management element in Possick.
849 F.2d at 336. Moreover, the instructions gave Johnson room to argue
that a mere buyer-seller relationship between Honken and others would
be insufficient to make Honken a manager or supervisor over these
individuals.19 Johnson also alleges various defects in the
instructions relating to the predicate CCE offenses. Her principal
complaint is that the articulation of several of these offenses, which
tracks the language of the indictment, is so vague that it violated
her right to a unanimous verdict on the predicate offenses underlying
the CCE. The 19 It bears mention that a buyer-seller instruction based
on Prieskorn, 658 F.2d at 636, was not warranted in this case because
the drug relationship between Honken and the two dealers involved
multiple transactions and large quantities of drugs rather than a
single transaction involving an amount consistent with personal use.
See United States v. Cordova, 157 F.3d 587, 597 (8th Cir. 1998)
(buyer-seller instruction properly rejected in a conspiracy case where
there was a large quantity of drugs and a significant amount of
interaction between defendants and dealers over an extended period of
time). district court concluded that all of her complaints about the
instructions as they pertain to the CCE predicates essentially
reiterate objections to the indictment that it had already deemed
waived as untimely. Johnson, 403 F. Supp. 2d at 837. In any case, the
instructions provide that each predicate offense must be found
Johnson appears to be contending that because
several of the offenses were alleged to have occurred on unknown dates
over an extended period of time, the jurors may have reached different
conclusions regarding some of the facts underlying these offenses.
Jurors may, however, differ on such "underlying brute facts" as long
as they attain unanimity that a particular predicate offense occurred.
Cf. Richardson v. United States, 526 U.S. 813, 817 (1999) (noting the
distinction between elements of the offense and the underlying facts
of the offense). In a trial for a crime requiring the threat of force,
for example, jurors could differ on whether a defendant used a knife
or a firearm so long as they reached unanimity that the required
element had been met.
Id. Finally, even if the first seven alleged
predicates about which Johnson complains were defective, the jury
found five other offenses, thus rendering harmless any error.
We have considered Johnson's other allegations
regarding the merits-phase jury instructions and conclude that they
13. Johnson's eligibility for the death penalty
Johnson contends that she was not eligible for the
death penalty for the murders of Lori Duncan or DeGeus because there
was insufficient evidence that she personally committed the murders in
a manner that involved torture or serious physical abuse.20 She also
contends that she was not eligible for the death penalty for Lori
Duncan's 20 One of the statutory aggravating factors the jury
considered in the eligibility phase was whether "[t]he defendant
committed the offense in an especially heinous, cruel, or depraved
manner in that it involved torture or serious physical abuse to the
victim." 21U.S.C. § 848(n)(12) (2005). murder because the evidence was
insufficient to demonstrate that Lori Duncan's murder involved torture
or serious physical abuse.
Johnson does not challenge on appeal the
instructions the district court gave on the statutory aggravating
factors, and she provides no authority for her suggestion that this
aggravating factor required her to personally commit the murders. The
instructions required the jury to find that Johnson "committed the
offense in question in an especially heinous, cruel, or depraved
manner in that it involved torture or serious physical abuse of the
victim." Although Johnson may not have pulled the trigger, the jury
was warranted in concluding that her conduct "involved" the "torture
or serious physical abuse" required to find this enhancement.21 As for
Lori Duncan's murder specifically, in addition to the "prolonged
mental harm"22 that this young mother undoubtably suffered as she and
her children were forcibly taken from their home, there was evidence
that she had been bound and gagged, had suffered fractures to her
pelvic bone and left hand, and had suffered at least one gunshot wound
more than necessary to end her life. The evidence thus establishes
both torture and serious physical abuse. 14. Admission of Steven
Vest's testimony During the selection phase, the district court
allowed Steven Vest, who had been incarcerated with Honken, to testify
to statements that Honken had made to Vest about the murders. Johnson
argues that the admission of Vest's testimony violated her rights
under the Confrontation Clause, that his statements were
constitutionally unreliable, and that the probative value of Vest's
testimony was outweighed by its potential for unfair prejudice. We
First, the admission of Vest's statements did not
violate Johnson's confrontation rights. The Confrontation Clause bars
the "`admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.'" Davis
v. Washington, 126 S. Ct. 2266, 2273 (2006) (quoting Crawford v.
Washington, 541 U.S. 36, 53-54 (2004)). Only testimonial statements
implicate a defendant's confrontation rights.
Crawford, 541 U.S. at 53-54. Testimonial statements
typically include "`solemn declaration[s] or affirmation[s] made for
the purpose of establishing or proving some fact.'" Crawford, 541 U.S.
at 51 (quoting 2 N. Webster, An American Dictionary of the English
Language (1828)). Although the Supreme Court has not provided a
comprehensive definition of the phrase "testimonial," and the outer
boundaries of the term have yet to be established, we conclude that
Honken's remarks fall safely outside the scope of testimonial hearsay.
Honken was not making "formal statement[s]." Id. at 51. Nor were his
statements elicited in response to government interrogation whose
primary purpose was to establish facts potentially relevant to a
See Davis, 126 S. Ct. at 2273-74 (describing
testimonial statements made during the course of a police
interrogation). In other words, when Honken spoke with Vest he did not
"bear testimony," Crawford, 541 U.S. at 51 (citation and quotation
marks omitted), in any relevant sense of the term, and the admission
of his statements, through Vest's testimony, did not violate Johnson's
confrontation rights.23 Second, we do not agree that Vest's testimony
was so unreliable that its admission violated Johnson's due process
rights. "Due process requires that some minimal indicia of reliability
accompany a hearsay statement." United States v. Petty, 982 F.2d 1365,
1369 (9th Cir. 1993). We believe that the testimony met the requisite
threshold of reliability. Honken's statements were against his penal
interests, his comments dealt primarily with his involvement in the
murders rather than Johnson's, and his remarks harmonized with other
evidence in the case. Finally, because Johnson put the extent of her
involvement in the murders in question, we conclude that this
testimony was more probative than prejudicial.
15. The recitation of a poem during the
Johnson contends that Lori Duncan's brother, Robert
Milbrath, should not have been permitted to read during the selection
phase24 a short poem written by one of Amber Duncan's childhood
friends.25 The government may introduce victim-impact evidence during
the penalty phase of a capital trial to demonstrate the "specific harm
caused by the defendant," including evidence that shows that the
"victim is an individual whose death represents a unique loss to
society and in particular to his family." Payne v. Tennessee,
501 U.S. 808 , 825 (1991) (citation and quotation marks
omitted). The introduction of evidence describing the emotional loss
to the victim's family will violate a defendant's due process rights
if "the victim impact evidence introduced is `so unduly prejudicial
that it renders the trial fundamentally unfair.'" Nelson, 347 F.3d at
713 (quoting Payne, 501 U.S. at 825).
Johnson asserts that the poem was more appropriate
to a funeral than a murder trial, but she does not appear to argue
that the sentiments and emotions articulated by the poem were
themselves unduly prejudicial or that their impact was somehow
magnified by the fact that they were expressed through poetry.
Although Milbrath's tearful and emotional reading of the poem was
apparently very moving, it merely conveyed the devastation and loss
felt by Milbrath and the poem's author. In addition, the government
presented only six family members to offer victim-impact testimony,
the testimony lasted less than two hours, and Johnson's own
selection-phase evidence featured more witnesses and took twice as
many trial days. The fact that the government did not present an undue
amount of victim-impact evidence and that Johnson presented
significant mitigation evidence, lessened any potential for undue
prejudice the poem may have had. See Nelson, 347 F.3d at 713-14
(noting that the evidence and argument concerning aggravating factors
that had not been considered during the eligibility phase and on
25 The poem reads as follows: "She was only six
when she left on a picnic.
Then the theft. She never would be able to get to
the age of seven, for she was shot, sent to heaven. I never got to say
good-bye. The nights I was scared, those nights I'd cry wishing to see
her face again, wishing that it would have never been. For my dear
friend, I loved her so. I never wanted her to go. Only five and not
aware of what would be ahead. Oh, what a scare. Amber isn't just a
color. She was my best friend." government presented only six
victim-impact witnesses, that its presentation occupied only 101 of
1100 pages of trial transcript, and that the defendant was able to
present a substantial amount of mitigation evidence).
16. The selection-phase verdict forms
Johnson alleges that the verdict forms were
erroneous and fatally defective because they required the jury to
either unanimously agree to a death sentence or unanimously agree to a
life sentence, whereas the law provides that a life sentence will be
imposed if any juror votes for life. She also argues that the verdict
forms contradict the district court's accurate jury instructions on
this topic. Because Johnson did not object to the forms, we review
them for plain error. United States v. Martinson, 419 F.3d 749, 753-54
(8th Cir. 2005).
The verdict forms do not expressly mention
unanimity with respect to the final verdict. Instead, the forms refer
the jurors to two of the district court's final selectionphase
instructions, one of which states that if any one juror finds that
death is not justified for a particular count, the court will impose a
sentence of life imprisonment without the possibility of parole on
that count. Two other instructions given to the jury -- but not
referenced on the verdict form themselves -- convey the same
information. The jurors were thus correctly informed that unanimity
was required for a death sentence, but not for a sentence imposing
life in prison. There was no plain error.
17. The government's selection-phase closing
Johnson contends that one of the prosecutors made
several improper comments during the selection-phase closing
arguments. She argues that the prosecutor mischaracterized the law
pertaining to mitigating factors, that he improperly attempted to
minimize the jurors' sense of responsibility for deciding Johnson's
fate, that he took improper advantage of the jurors' sympathy for the
victims, and that he denigrated the mitigating factor regarding the
victims' consent to the course of conduct resulting in their deaths.
Because Johnson raised a contemporaneous objection to only one of the
comments, we will review the majority of the assertedly improper
remarks for plain error and "we will only reverse under exceptional
circumstances." United States v. Mullins, 446 F.3d 750, 758 (8th Cir.
2006) (quoting United States v. Eldridge, 984 F.2d 943, 947 (8th Cir.
1993)). Because Johnson did object to the prosecutor's comments about
the "victims' consent" mitigator, we will review for abuse of
discretion the district court's denial of Johnson's objection to the
prosecutor's remarks on that subject. United States v. Samples, 456
F.3d 875, 886 (8th Cir. 2006), cert. denied, 127 S. Ct. 1162 (2007).
Our inquiry turns on whether the prosecutor's remarks were improper
and, if they were, whether the remarks so "infected the trial with
unfairness as to make the resulting [death sentences] a denial of due
process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
Johnson's first contention concerns the
prosecutor's remarks about Johnson's mitigators. The prosecutor
argued: The intentional murder of children is an unspeakable evil.
It's an evil that cannot be mitigated by any evidence. None of the
defendant's mitigators can take away what she did and her involvement
in killing those children. Somebody involved in the murder of children
deserves the death penalty.
Johnson suggests that the prosecutor was improperly
arguing that "mitigating factors did not apply in this context." We
disagree. The prosecutor was not arguing that the jurors could choose
to ignore the mitigators or exclude them from consideration, but
rather that they were insufficient to outweigh the gravity of the
offense. As we have already noted, as long as the jurors are not told
to ignore or disregard mitigators, a prosecutor may argue, based on
the circumstances of the case, that they are entitled to little or no
weight.26 Johnson also takes issue with the prosecutor's suggestion
that by raising her troubled childhood as a mitigating factor, Johnson
was attempting to excuse her conduct. Johnson appears to assert that
the prosecutor was arguing that Johnson's references to her childhood
were an attempt to deny criminal responsibility. We disagree. The
prosecutor was arguing instead that she had free will and an
opportunity to make the right choices, her difficult childhood
notwithstanding. This was permissible. Cf. Bland v. Sirmons, 459 F.3d
999, 1026 (10th Cir. 2006) (holding that prosecutor's reference to
some of defendant's mitigators as "excuses" was not misconduct), cert.
denied, 127 S. Ct. 2117 (2007).
Johnson asserts next that the prosecutor diminished
the jurors' sense of responsibility for the verdict by stating, "And
if you choose the death penalty, you 26 We do note, however, that the
prosecutor's choice of words was infelicitous.
While he had probably meant to argue only that
Johnson's mitigators did not outweigh the heinousness of the
children's murders, his remarks, if they were taken out of context,
could be taken to suggest that the mitigation evidence was intended to
diminish the horror of the killings or Johnson's involvement therein.
At least some of the mitigating factors, however, such as Johnson's
relationship with her daughters or her potential for leading a
productive life in prison, were intended to provide reasons for mercy
despite the gravity of the offense, rather than to "take away"
Johnson's involvement in the crime or portray the murders as any less
evil. "`The question is not whether evidence in mitigation makes the
defendant any less guilty, or the crime any less horrible, but whether
it provides a reason why, despite those things, the defendant should
not die.'" Le v. Mullin, 311 F.3d 1002, 1017 (10th Cir. 2002) (per
curiam) (quoting Le v. Oklahoma, 947 P.2d 535, 555 (Okla. Crim. App.
1997)). Although the prosecutor's comments may have been somewhat
imprecise, we do not believe that the comments, taken in their full
context, were likely to confuse the jury particularly in light of
the fact that Johnson's counsel reminded them that the nature of the
crime was only one consideration in determining the penalty and that
they were to consider the offender as well as the offense. choose it
as a group. It doesn't rest on the shoulders of any one of you." He
also remarked that "[t]here's courage in numbers." These comments were
While "it is constitutionally impermissible to rest
a death sentence on a determination made by a sentencer who has been
led to believe that the responsibility for determining the
appropriateness of the defendant's death rests elsewhere," such as an
appellate court, Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985),
that was not what the prosecutor was doing here. The prosecutor was
instead reposing the responsibility upon the jury, where it belonged.
Furthermore, while the prosecutor emphasized the collective nature of
jury deliberations and the fact that a verdict of death could not be
returned unless the jury as a whole determined that it was
appropriate, the prosecutor also acknowledged that the decision to
vote for death would also have to be made by the jurors individually.
Johnson argues further that the prosecutor
improperly encouraged the jury to impose the death penalty based on
sympathy for the victims. During closing arguments, Johnson's counsel
attempted to underscore the gravity of a life sentence, essentially
contending that Johnson had a long time left to live and that with
each passing year Johnson would miss various milestones and events in
the life of her family, knowing that she had only herself to blame.
The prosecutor responded to this argument during rebuttal by remarking
that ten, twenty, and thirty years from now, the victims would still
be dead and Kandi and Amber would still be ten and six-years old.
The prosecutor also added, "No matter how small
Angela Johnson's cell may be, it's going to be larger than the coffin
that Amber and Kandi Duncan are laying [sic] in now." These remarks
strayed over the line. Although the government was entitled to respond
to Johnson's portrait of a miserable thirty years behind bars, it
should not have used the victims' plights to do so. See Bland, 459
F.3d at 1028 ("[I]t is prosecutorial misconduct for the prosecution to
compare the plight of [a murder] victim with the life of the defendant
in prison."). As Johnson notes, the prosecutor's comments closely
resemble remarks the Tenth Circuit criticized in Le, 311 F.3d at
1014-15. In that case, the prosecutor stated that the following year
the defendant would be one year older, but the victim would remain "34
years old from now until eternity. He will always be 34." Id. Later,
the prosecutor said, "Defense counsel has asked you to sentence [sic]
a punishment of life imprisonment or life without parole, but do you
really think that justice would be done if this man goes to prison,
gets three meals a day and a clean bed every night and regular visits
from his family while Hai Nguyen lays cold in his grave[?]" Id. at
1015. The prosecutor's comments in this case, like those in Le, went
beyond the bounds of permissible argument.
Nevertheless, because the senseless and unspeakably
brutal deaths of the two small children would naturally and inevitably
evoke deep sympathy from the jury, those brief comments were not
likely to evoke to any further appreciable degree the jury's sympathy
for the victims. See Walker v. Gibson, 228 F.3d 1217, 1243 (10th Cir.
2000) (concluding that although the prosecutor encouraged the jury to
base its decision on sympathy for the victim, sympathy would have been
engendered by the nature of the crime, even without the prosecutor's
unfortunate remarks). We therefore conclude that the remarks, while
questionable, did not infect the selection phase of Johnson's trial
with unfairness and were not significant enough to constitute plain
Finally, Johnson argues that the prosecutor
improperly "denigrated" the mitigating factor associated with the
victims' consent. This mitigating factor required the jury to
determine whether "two victims, Greg Nicholson and Terry DeGeus,
consented to the conduct, methamphetamine manufacturing and
distribution, that significantly contributed to the circumstances of
their deaths." The prosecutor argued that, through this mitigating
factor, Johnson was essentially attempting to blame Nicholson and
DeGeus for their demise and contended, "They were murdered because
they were witnesses, not because they were involved in the drug
trade." The prosecutor thus did not "denigrate" the mitigator, but in
essence merely contended that Nicholson's and DeGeus's participation
in the drug trade did not significantly contribute to the
circumstances of their deaths. In light of the evidence, we cannot say
that this was an unfair argument.27 18. Multiplicitous convictions
Johnson contends that her convictions for murder while engaging in a
conspiracy and her convictions for murder while working in furtherance
of a CCE were mutliplicitous. The Supreme Court held in Rutledge v.
United States, 517 U.S.
292 (1996), that because a drug conspiracy
violation of 21U.S.C. § 846 is a lesser included offense of a CCE
violation of 21U.S.C. § 848, a defendant may not be convicted of both
offenses. Id. at 306-07. Johnson's convictions for the conspiracy
murders and her convictions for the CCE murders are therefore
multiplicitous. See United States v. Moore, 149 F.3d 773, 779 (8th
Cir. 1998) (noting that the defendant could not be convicted of both
conspiracy and CCE murder, but holding that the risk of multiplicitous
convictions or punishment was eliminated by a verdict form instructing
the jury that they need not consider conspiracy murder charges if they
found the defendant guilty of CCE murder). The government does not
contest the multiplicitous nature of the charges, arguing instead that
Johnson had waived the claim by not raising it in the district court.
Because we conclude that the claim was raised sufficiently below and
the government has not given us any reason to conclude that the
charges were not multiplicitous (as they appear to be), we remand this
case so the district court may vacate the conspiracy murder
convictions. Cf. Possick, 849 27 There is very little case law
interpreting this mitigator. The case most directly on point is United
States v. Beckford, 962 F. Supp. 804 (E.D. Va. 1997), which, after
noting the paucity of federal law or legislative history on this
mitigator, surveys relevant state law and the pertinent section of the
Model Penal Code. Id. at 817-21.
Based on this survey, the district court in
Beckford concluded that the victim's consent mitigator will usually be
relevant in two circumstances: 1) when the defendant and the victim
have consented to participate in a highly dangerous activity, such as
Russian roulette; or 2) where the victim consents to a mercy killing.
Id. at 821.
F.2d at 341(remanding the case to the district
court so that it may vacate conspiracy conviction that was a lesser
included offense in the CCE conviction).
19. Juror misconduct
Johnson's final claim is that the district court
erred in denying her motion for an evidentiary hearing to explore
potential juror misconduct. After the trial, Johnson's attorneys were
granted leave to contact the jurors "subject to the limits of Rule
606(b) of the Federal Rules of Evidence" and with the understanding
that the purpose of contacting the jurors was to help the attorneys
try a better case. One of the jurors interviewed by a defense
investigator told the investigator that he had visited his son in
prison a week before the penalty-phase closing arguments and that he
was advised that prisoners serving life sentences are allowed in the
general population, whereas those facing the death penalty are kept in
solitary confinement. There is no indication that he told the other
jurors what he had learned. The juror also said that he had explained
to other jurors that Johnson would have three automatic appeals and
that the jury's verdict would merely "set the stage" for these
appeals. The district court denied Johnson's request for an
evidentiary hearing to explore these matters further.
"The district court has broad discretion in
managing juror misconduct allegations, and its decision whether to
conduct an evidentiary hearing over such allegations will be affirmed
absent an abuse of discretion." United States v. Wintermute, 443 F.3d
993, 1002 (8th Cir. 2006) (citing United States v. Vig, 167 F.3d 443,
450 (8th Cir. 1999)). Federal Rule of Evidence 606(b) generally
precludes inquiry into intrajury communications. United States v.
Caldwell, 83 F.3d 954, 956 (8th Cir. 1996). The two exceptions to the
rule permit testimony regarding "extraneous prejudicial information
and outside influences brought to bear on the jury." Id. Before a
hearing may be granted, however, the moving party should "show that
outside contact with the jury presents a reasonable possibility of
prejudice to the verdict." United States v. Tucker, 137 F.3d 1016,
1030 (8th Cir. 1998).
We conclude that the district court's decision to
deny a hearing to explore the juror's prison visit was not an abuse of
discretion because we are not persuaded that there was a reasonable
possibility that information pertaining to prison conditions for death
row or life-in-prison inmates would have affected the jurors'
deliberations or prejudiced Johnson's case. Indeed, as the district
court noted, Johnson herself introduced evidence pertaining to prison
conditions. Johnson, 403 F. Supp. 2d at 887.
We also conclude that inquiry into the remarks
concerning Johnson's "automatic" appeals is precluded by Rule 606(b)
because, contrary to Johnson's suggestion, the juror's comments were
not extraneous information, but merely reflected the juror's
understanding of the appellate process, a topic within the range of
jurors' common knowledge. Johnson correctly observes that information
may be considered extraneous even if it originates with a juror.
United States v. Swinton, 75 F.3d 374, 381 (8th Cir. 1996). We have
also recognized, however, that "jurors are expected to bring commonly
known facts to bear in assessing the facts presented for their
consideration." Id.; see also Hard v. Burlington Northern R.R. Co.,
870 F.2d 1454, 1461 (9th Cir. 1989) ("The type of after-acquired
information that potentially taints a jury verdict should be carefully
distinguished from the general knowledge, opinions, feelings, and bias
that every juror carries into the jury room."). Just as jurors may be
expected to have opinions (sometimes accurate; sometimes poorly
conceived) on matters pertaining to everyday life, so too may they be
expected to possess some notions regarding the criminal justice
system. Most, if not all, of the jurors in Johnson's case might be
expected to have acquired some impressions regarding the appellate
process. These impressions may be incorrect and taking such opinions
into account may even, in some circumstances, be improper, but they
are not extraneous. See United States v. Rodriquez, 116 F.3d 1225,
1226-27 (8th Cir. 1997) (noting that although it was improper for the
jury to draw adverse inferences from the fact that the defendant did
not testify, an evidentiary hearing to inquire into this misconduct
was properly denied because the defendant's failure to testify was not
extraneous information). We therefore conclude that the district court
did not abuse its discretion in precluding further examination of the
juror's ill-advised remarks to his fellow jurors.
After careful consideration of the record, the
parties' arguments, and the district court's most thorough memorandum
opinion, we conclude that Johnson's remaining arguments are
unavailing. The case is remanded to the district court so that the
court may vacate Johnson's multiplicitous convictions and sentences.
In all other respects, we affirm.
3 There was testimony that this kind of weapon
would not normally be used for hunting and would be more accurately
characterized as an assault weapon.
4 One witness testified that Johnson had told her
that Johnson aimed the firearm at DeGeus while Honken beat him.
8 We note that Johnson does not contend that "the
trial court deliberately misapplied the law in order to force [her] to
use a peremptory challenge to correct the court's error."
Martinez-Salazar, 528 U.S. at 316.
9 Jurors may believe themselves precluded from
considering relevant mitigation evidence not only as a result of the
judge's instructions, "but also as a result of prosecutorial argument
dictating that such consideration is forbidden." Abdul-Kabir v.
Quarterman, 127 S. Ct. 1654, 1672 n.21 (2007). 10 Because the
prosecutor acknowledged during closing argument that Johnson had no
prior criminal record, we reject the government's contention on appeal
that the closing argument was appropriate because "criminal record"
for mitigation purposes also encompasses uncharged criminal conduct.
11 Johnson argues that liability as an aider and
abettor is inapplicable to CCE murder. As Johnson appears to
recognize, however, all of the cases cited by the parties on this
issue have reached the contrary conclusion. See, e.g., United States
v. Walker, 142 F.3d 103, 113 (2d Cir. 1998) (concluding that "aider
and abettor liability is available" for CCE murder).
12 Johnson also contests Jeff Honken's
classification as a CCE participant. There was evidence that Jeff
Honken provided money to Honken in exchange for a portion of the drug
proceeds, allowed Honken to store equipment in his sheds, and disposed
of drug equipment upon Honken's 1994 arrest. This activity suffices to
establish Jeff Honken's participation in the CCE under his brother's
13 We have considered carefully Johnson's other
contentions regarding the elements of the CCE murder and conclude that
they lack merit.
14 Some of this evidence may have been relevant and
admissible for other purposes as well. 15 Johnson also contends,
without supporting argument, that the district court erred in failing
to give Johnson's proposed jury instructions on subsequent acts. We
16 We have considered Johnson's other assertions
regarding the admission of hearsay in the merits phase and conclude
that they lack merit.
17 Johnson asserts that the forfeiture rule is
inapplicable because she did not knowingly or intentionally waive her
confrontation rights. This argument is unavailing, as courts have
consistently concluded that the forfeiture by wrongdoing doctrine
rests on the defendant's wrongdoing rather than on a knowing and
intelligent waiver. See, e.g, People v. Giles, 152 P.3d 433, 442-43
(Cal. 2007) (explaining that the forfeiture by wrongdoing doctrine is
based on forfeiture rather than waiver); State v. Hallum, 606 N.W.2d
351, 355 (Iowa 2000) ("[T]he loss of a defendant's right to object is
based on a forfeiture theory because the loss rests on the defendant's
misconduct, not on the defendant's relinquishment of a known right.").
18 Doyle may also be inapplicable here because
Johnson was not silent about the murders, but elected to speak. See
Anderson v. Charles, 447 U.S. 404, 408 (1980) ("Doyle does not apply
to cross-examination that merely inquires into prior inconsistent
statements. Such questioning makes no unfair use of silence because a
defendant who voluntarily speaks after receiving Miranda warnings has
not been induced to remain silent."); see also United States v.
DeVore, 839 F.2d 1330, 1332 (8th Cir. 1988) ("[A] defendant who
chooses to speak after being given proper Miranda warnings and who at
trial gives a different account of the same events is subject to
cross-examination about the prior statement."). Because we resolve
this issue on the basis already stated, we need not explore this
21 We note that although there was little evidence
that Johnson had directly inflicted any serious physical abuse upon
DeGeus, there was testimony that she had aimed the firearm at him
while Honken beat him. Accordingly, there was evidence that Johnson
not only assisted with the murder, but participated in the serious
physical abuse inflicted upon DeGeus as well. 22 The jury was
instructed that "torture" includes "prolonged mental harm caused by .
. . the threat that another person will be imminently subjected to
death, or severe physical pain or suffering." (Eligibility-phase
instruction No. 4).
23 The parties sharply dispute whether the
Confrontation Clause was applicable to Johnson's selection phase. As
the government observes, we have held in the context of a non-capital
case that "the confrontation clause does not apply in sentencing
proceedings." United States v. Wallace, 408 F.3d 1046, 1048 (8th Cir.
2005) (per curiam), cert. denied,
546 U.S. 1069 (2005). Johnson argues that capital
sentencing is different and that a broader range of constitutional
rights including confrontation rights apply in capital sentencing
proceedings. We need not address this issue, however, because the
statements fall outside the scope of the Confrontation Clause. 24 As
we noted earlier, after the jury found Johnson guilty of the murders,
there was an eligibility phase, in which the jury was asked to
determine whether Johnson was eligible for the death penalty, followed
by a selection phase, in which the jury was asked to determine whether
Johnson was to receive on the various charges a death sentence or a
sentence of life in prison. In the selection phase, the parties