United States v. Angela Jane Johnson

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United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1001
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Angela Jane Johnson,                    *
                                        *
             Appellant.                 *
                                   ___________

                             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
21 U.S.C. § 848
(e)(1)(A) and
18 U.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
21 U.S.C. § 848
(e)(1)(A) and
18 U.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, we affirm.

                                          I.

       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.

                                         -2-
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




                                         -3-
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




      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-
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


      4
      One witness testified that Johnson had told her that Johnson aimed the firearm
at DeGeus while Honken beat him.

                                          -5-
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.

                                         -6-
       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.

                                          II.

       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.

                                          -7-
        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 co-
defendant’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

                                         -8-
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

                                            -9-
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.

                                          -10-
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 Equal Protection

      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. 24(b)(1).
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 non-
capital 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

                                          -11-
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

                                          -12-
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 juror.

B.    Impairment of her right to exercise peremptory challenges

      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-


                                          -13-
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.” Martinez-
Salazar,
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 Martinez-
Salazar, 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.
-14-
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).




      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
.

                                          -15-
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 factors

       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.




                                          -16-
        Sentencers “may determine the weight to be given relevant mitigating evidence.
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



      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.

                                          -17-
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. 1998).

       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


                                         -18-
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


      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).

                                          -19-
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 Honken. Cf.
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


      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 supervision.

                                        -20-
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 merits-
phase 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.”


      13
       We have considered carefully Johnson’s other contentions regarding the
elements of the CCE murder and conclude that they lack merit.

                                         -21-
       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



                                          -22-
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 Constitution.
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




      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
disagree.

                                        -23-
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 unavailability.
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
.




      16
       We have considered Johnson’s other assertions regarding the admission of
hearsay in the merits phase and conclude that they lack merit.

                                        -24-
      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 v. Bull,
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 Doctrine

       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

                                         -25-
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).

                                          -26-
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’
unavailability.

       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

                                         -27-
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


      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.”).

                                          -28-
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 was arguing.
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 post-arrest silence.
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,

                                           -29-
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




      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 possibility further.

                                         -30-
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).


                                          -31-
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 unanimously.

        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 lack merit.

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.”
21 U.S.C. § 848
(n)(12) (2005).

                                          -32-
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.




      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).

                                         -33-
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 disagree.

       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 criminal prosecution.
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




                                         -34-
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 selection phase

      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


      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 presented

                                         -35-
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 mitigating factors.
      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.”

                                         -36-
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 selection-
phase 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 argument

      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

                                           -37-
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



                                          -38-
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.

                                        -39-
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 not improper.
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

                                         -40-
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
error.

       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




                                          -41-
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
21 U.S.C. § 846
is a lesser
included offense of a CCE violation of
21 U.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
.

                                          -42-
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



                                         -43-
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

                                         -44-
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.
                             ______________________________




                                          -45-