UNITED STATES of America, Plaintiff, v. Angela JOHNSON, Defendant, 403 F. Supp. 2d 721

MEMORANDUM OPINION AND ORDER REGARDING THE DEFENDANT’S MOTIONS IN ARREST OF JUDGMENT AND FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL BENNETT, Chief Judge. TABLE OF CONTENTS I. OVERVIEW...............................................................736 II. INTRODUCTION..........................................................741 A. Background...........................................................741 1. Prior prosecutions ofHonken......................................741 2. The disappearance of the witnesses.................................742 3.

Discovery of the murder victims’ bodies.............................742 4. The indictments in this case.......................................743 5. Honken’s trial....................................................744 B. Signifícant Rulings Before And During Johnson’s Trial...................745 C. Johnson’s Trial........................................................748 1. The charges at trial...............................................748 2. Jury selection....................................................748 3. The “merits phase”...............................................751 4.

The “eligibilityphase”............................................752 5. The “penalty phase”..............................................753 D. Post-Trial Proceedings................................................755 III. THE MOTION IN ARREST OF JUDGMENT.................................757 A. Grounds For The Motion...............................................757 B. Timeliness............................................................757 1. Arguments of the parties ..........................................757 2. Analysis.........................................................757 C.

Failure To Charge A “Substantive Connection”..........................759 1. Arguments of the parties ..........................................759 2. Analysis.........................................................759 D. Failure To Charge A Cognizable “Aiding And Abetting” Offense...........761 1. Arguments of the parties ..........................................761 2.Analysis..................................................... 761 IV. THE MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL....... 763 A. Waiver........................................................... 763 B.

Applicable Standards.............................................. 765 1. Judgment of acquittal......................................... 765 2. New trial .................................................... 766 C. Allegedly Erroneous Pretrial Rulings............................... 766 1. Ground No. 5: Denial of motions for change of venue............. 767 a. Background.............................................. 767 b. Arguments of the parties................................... 768 c. Analysis ................................................. 768 2.

Ground No. 11: Failure to strike and submission to the jury of legally insufficient allegations in Counts 6 through 10......... 770 a. Background.............................................. 770 b. Arguments of the parties................................... 770 c. Analysis ................................................. 771 3. Ground No. 21: Failure to strike the death penalty after the indictment was amended during jury selection................ 772 a. Background.............................................. 772 b. Arguments of the parties................................... 772 c.

Analysis ................................................. 773 D. Alleged Errors During Jury Selection ............................... 774 1. Ground No. 7: Rule 24 violates equal protection ................. 774 a. Background.............................................. 774 b. Arguments of the parties................................... 775 c. Analysis ......................... ....................... 775 2. Ground No. 6: Failure to grant Johnson additional peremptory challenges ................................................. 776 a. Background.............................................. 776 b.

Arguments of the parties................................... 777 c. Analysis ................................................. 777 3. Ground No. 8: Challenges for.cause erroneously granted.......... 779 a. Background.............................................. 779 i. Prospective Juror 533................................. 779 ii. Prospective Juror 458................................. 780 iii. Prospective Juror 769................................. 780 b. Arguments of the parties................................... 781 c. Analysis ................................................. 781 i.

The standard for an “impartial” juror.................. 781 ii. The standard for erroneous rulings on motions to strike jurors............................................. 782 iii. Application of the standards........................... 783 4. Ground No. 9: Challenges for cause erroneously denied........... 785 a. Jurors on whom the claim can be based..................... 785 b. Background.............................................. 787 i. Prospective Juror 600................................. .787 ii. Prospective Juror 797................................. 787 c.

Arguments of the parties................................... 788 d. Analysis ................................................. 789 E. Alleged Errors During The “Merits Phase”.......................... 789 1. Ground No. 1: Insufficiency of the “merits phase” evidence....... 790 a. Arguments of the parties................................... 790 b. Analysis ................................................. 793 i. Insufficiency of the evidence on the “conspiracy murder” counts ................................... 793 ii.

Insufficiency of the evidence on the “CCE murder” counts............................................. 796 2. Ground No. 4: The “merits” verdicts were against the weight of the evidence....................................................797 3. Ground No. 13: The admission of, arid argument from, evidence of Honken’s guilty plea, conviction, and offense details...............797 a. Background..................................................798 b. Arguments of the parties.......................................799 c.

Analysis .....................................................800 i.Applicable law...........................................800 ii. The admission of Honken’s 1997 guilty plea and details of the offenses..........................................801 iii. The prosecutor’s argument concerning Honken’s 1997 conviction.............................................804 4. Ground No. 14: The admission of “bad acts” evidence................804 a. Background..................................................805 b. Arguments of the parties.......................................805 c.

Analysis .....................................................805 i.Untimeliness ............................................805 ii. Evidence of drug activity after the killings.................806 iii. Other challenged evidence ............ 808 5. Ground No. 15: The admission of hearsay...........................809 a. Background..................................................810 b. Arguments of the parties.......................................810 c.

Analysis .....................................................811 i.Admissibility of statements of Nicholson and DeGeus........811 ii.Admissibility of Honken’s 1997 guilty plea..................814 6. Ground No. 16: The admission of Rick Held’s testimony concerning Honken’s purchase of a firearm........................815 a. Background..................................................815 b. Arguments of the parties.......................................815 c. Analysis .....................................................816 i. “Testimonial” hearsay....................................816 ii.

Admissibility............................................819 7. Ground No. 17: The admission of evidence from McNeese.............820 8. Ground No. 22: The admission of evidence that Johnson was. the “principal” in the offenses.......................................820 a. Background..................................................821 b. Arguments of the parties.......................................821 c. Analysis ...........................'..........................822 9. Ground No. 18: The closing argument allegedly in violation of Johnson’s right against self-incrimination........................824 a.

Background..................................................824 b. Arguments of the parties.......................................824 c. Analysis .....................................................827 i. Violation of the right against self-incrimination ............827 ii. The prosecutor’s argument that Johnson may have been “the shooter.”..........................................829 10. The “merits phase” jury instructions...............................830 a. Applicable standards..........................................831 b. Ground No. 12: The preliminary jury instructions................831 i.

Background..............................................831 ii. Arguments of the parties..................................833 iii. Analysis.................................................833 c. Ground No. 19: Substantive errors in the “Merits Phase” Jury Instructions...........................................834 i. Active continuance of drug offenses........................835 ii. Unanimous verdict on predicate CCE offenses ..............836 iii. Lack of a buyer-seller instruction..........................837 iv.

Failure to instruct that the killings resulted from Johnson’s conduct......................................839 F. Alleged Errors In The “Eligibility Phase”...............................841 1. Ground No. 2: Insufficiency of the evidence of “eligibility” factors.........................................................842 a. Arguments of the parties.......................................842 b. Analysis .....................................................843 i. Insufficient evidence of the “gateway aggravating factor.”................................................843 ii.

Insufficient evidence of “planning and premeditation.”.....844 iii.Insufficient evidence of “torture” or “substantial physical abuse.” .............................................845 2. Ground No. 4: The “eligibility phase” verdicts were against the weight of the evidence...........................................846 G. Alleged Errors In The “Penalty Phase”.................................847 1. Ground No. 3: Insufficiency of the “penalty phase” evidence..........847 a. Arguments of the parties..................... 847 b. Analysis .....................................................848 2.

Ground No. 4: The “penalty phase” verdicts were against the weight of the evidence...........................................849 3. Ground No. 20: The death penalty should be barred by advice to Johnson from a government agent................................850 a. Arguments of the parties.......................................850 b. Analysis .....................................................851 4. Ground No. 23: The admission of Mr. Vest’s testimony...............852 5. Ground No. 24: The admission of a former clerk’s testimony..........852 a. Background..................................................853 b.

Arguments of the parties.......................................853 c. Analysis .....................................................854 6. Ground No. 25: The admission of a poem written by a murdered child’s friend..............:....................................854 a. Background..................................................855 b. Arguments of the parties.......................................855 c. Analysis .....................................................856 7. Ground No. 26: The cross-examination of Chief Book.................857 a. Background..................................................857 b.

Arguments of the parties.......................................858 c. Analysis .....................................................858 8. Ground No. 27: The treatment of defense experts by the court.........859 a. Background..................................................860 b. Arguments of the parties.......................................862 c. Analysis .....................................................863 9. Grounds Nos. 34 and 22: The prosecutor’s closing argument ..........867 a. Background..................................................867 b. Arguments of the parties..................... 869 c.

Analysis .....................................................869 10. Ground No. 28: Denial of motion to allocute.........................871 11. Ground No. 29: Striking the “substantial influence” mitigator........871 a. Background..................................................872 b. Arguments of the parties.......................................872 c. Analysis .....................................................872 12. Ground No. 10: Instructions and argument that mitigating factors could be given “no weight”...............................873 a. Background............. 873 b.

Arguments of the parties.......................................874 c. Analysis .....................................................875 13. Ground No. 30: Placing the mitigators in a relatively negative light...........................................................877 a. Background..................................................878 b. Arguments of the parties.......................................879 c. Analysis .....................................................880 14.

Ground No. 31: Failure to instruct in the “penalty phase” that the jury had not found certain aggravating factors in the “eligibility phase”..............................................882 15. Ground No. 33: Plain error in the “penalty phase” verdict form regarding ñndings for life or death...............................883 a. Background..................................................883 b. Arguments of the parties................ 884 c. Analysis .....................................................885 16. Ground No. 36: Prejudicial misconduct by a juror...................887 17.

Ground No. 32: The verdicts on numerous mitigators demonstrate juror confusion and a miscarriage of justice.......................888 a. Arguments of the parties.......................................888 b. Analysis .....................................................890 H. Fundamental Eighth Amendment Violation .............................892 1. Arguments of the parties ..........................................893 2. Analysis.........................................................894 V.

CONCLUSION............................................................897 After her separately indicted co-defendant, Dustin Honken, had been convicted as the “principal” on five capital counts of “conspiracy murder” and five capital counts of “CCE murder,” in violation of 21 U.S.C. § 848(e)(1)(A), for the killings of three adults and two children, defendant Angela Johnson came to trial in April 2005 on ten capital charges of “aiding and abetting” the same killings. Johnson’s trial was just as long and complicated as Honk-en’s, and also led to convictions on all ten capital counts.

However, while Honken’s jury had recommended the death penalty only for the counts charging the killings of the children, Johnson’s jury recommended the death penalty not only for the killings of the children, but for the killings of two of the three adults, as well.

The alleged unfairness of the recommendation of a more severe sentence for the “aider and abetter” than for the “principal” for two of the killings was a dominant theme of Johnson’s post-trial challenges to her convictions, and indeed, the potential for such a disparity in sentences has been a dominant theme in her arguments concerning the availability of the death penalty in her case ever since Honken was convicted as the “principal” for the same offenses.

However, it is but one of thirty-eight alleged errors that Johnson contends should result in an arrest of judgment, a judgment of acquittal, or a new trial on one or more of the “merits,” “eligibility,” and “penalty” phases of her trial. The plethora of alleged errors explains, in part, the length and depth of the court’s ruling on Johnson’s post-trial motions. However, another reason is the fundamental principle that, in punishment of crimes, death is “different.” See, e.g., Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion); Woodson v.

North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion); see also Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring). I. OVERVIEW Defendant Angela Jane Johnson, like her separately indicted co-defendant and some time boyfriend, Dustin Honken, was charged with five counts of “conspiracy murder” and five counts of “CCE murder,” in violation of 21 U.S.C. § 848(e)(1)(A), for the 1993 murders of five people who were witnesses to Honken’s drug-trafficking activities, or other criminal conduct, or both.

Two of the murder victims were children, ages 6 and 10, who like their mother had had the misfortune to be at home when Johnson and Honken came looking for one of Honken’s drug dealers whom Honken and Johnson suspected of cooperating with law enforcement officers. The two children, their mother, and the drug dealer were shot to death in one episode and buried in a single grave.

A second drug dealer, who was Johnson’s ex-boyfriend, and whom Honken and Johnson also suspected had or might cooperate with law enforcement officers, was shot and beaten to death in a separate episode more than three' months later and buried at a different burial site. Although the police suspected Honken and Johnson in the disappearances of these five victims, the two were not indicted on capital charges until 2001, after the discovery of the victims’ graves. Honken and Johnson were indicted and tried separately, with Honken’s trial first.

Honken was convicted on all counts, and the jury recommended the death sentence for the capital counts charging the murders of the two children. In part because Honken had previously been convicted as a “principal” in the murders, the government elected to go to trial against Johnson only on the theory that Johnson “aided and abetted” the killings. In the “merits phase” of her trial, the jury found Johnson guilty of all ten capital counts.

In the “penalty phase,” the jury made a binding recommendation that Johnson, like Honk-en, be sentenced to death, but on eight of the ten capital counts, not just four, as Honken had been. More specifically, Johnson’s jury recommended death sentences for the murders of the two children, their mother, and Johnson’s ex-boyfriend, but recommended a life sentence for the murder of the first drug dealer. Johnson has filed two post-trial motions, her August 19, 2005, Motion In Arrest Of Judgment (docket no. 636), and her August 19, 2005, Motion For Judgment Of Acquittal Or For New Trial (docket no. 634).

In her Motion In Arrest Of Judgment, Johnson asserts that the following two flaws require the court to set aside the verdicts against her: GROUNDS FOR ARREST OF JUDGMENT Defendant’s No. Asserted Error 1. The indictment in this matter fails to ■ charge an offense in that an essential element of the offense is lacking from each of the counts in the indictment. Specifically, the indictment does not allege a “substantive connection” between the killings and the drug conspiracy or CCE offense charged. 2.

The indictment as amended during jury selection to allege only that Angela Johnson aided and abetted the intentional killings faded to charge an offense cognizable under 21 U.S.C. § 848(e), and because of this defect, the court lacks jurisdiction.

In her separate Motion For Judgment Of Acquittal- Or For New Trial, Johnson asserts that any one of thirty-six errors or incidents that occurred before or during her trial would require the court to enter judgment of acquittal on the capital charges, strike -the death penalty as an available punishment, and/or grant her an entirely new trial or, at the very least, grant her a new trial on the applicable penalties.

While the court must consider each of Johnson’s thirty-six alleged errors, the court finds that Johnson has set them out in what appears to be a “stream of consciousness” order, without any apparent rhyme or reason. The court, however, finds it appropriate to consider the alleged errors chronologically, by phases of the case and trial, and then by topic or category in each phase, rather than simply in the order in which Johnson has listed them.

Therefore, the court has reorganized the grounds for judgment of acquittal or new trial that Johnson raises as shown in the following chart, and will consider them in that order, although the court here states the grounds asserted essentially as Johnson stated them: GROUNDS FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL PRETRIAL RULINGS Defendant’s Court’s No. No. Asserted Error 5. 1. The trial court erred by not granting a change of venue, thereby denying defendant her right to a fair and impartial trial. 11. 2.

The trial court erred in failing to strike legally insufficient allegations from Counts 6 through 10 as requested in defendant’s December 23, 2004 motion and further erred in submitting these allegations to the jury. 21. 3. The trial court erred in failing to strike the death penalty after the government amended the indictment during jury selection for the reasons argued in defendant’s May 1, 2005 filing. JURY SELECTION Defendant’s Court’s No. No. Asserted Error 7. 1. The peremptory challenge rule in capital cases violates equal protection and due process as argued in defendant’s pretrial filings.

JURY SELECTION (continued) Defendant’s Court’s No. No. Asserted Error 6. 2. The trial court erred and denied defendant her right to a fail’ and impartial jury by not granting her additional peremptory challenges. 8. 3. The trial court erroneously struck for cause jurors 533, 458 and 769 thereby denying defendant her right to a fair trial before a fan- and impartial jury comprised of a cross-section of the community in violation of the Sixth, Eighth and Fourteenth Amendments. 9. 4.

The trial court erroneously denied challenges for cause to jurors 52, 64, 109, 228, 293, 301, 379, 403, 495, 528, 576, 600, 617, 653, 788, 797 and 800 thereby depriving defendant her right to a fan- trial before a fair and impartial jury comprised of a cross-section of the community in violation of the Sixth, Eighth and Fourteenth Amendments. MERITS PHASE Defendant’s Court’s No. No. Asserted Error 1. 1.

The evidence, when viewed in the light most favorable to the “guilt phase” verdicts, was not sufficient to establish the ele- - ments of the offenses charged beyond a reasonable doubt as required by due process. 4. 2. The weight of the evidence is against the jury’s verdicts and findings in each of the phases and a miscarriage of justice has occurred such that a new trial, in whole or in part, is warranted. 13. 3.

The evidence of Honken’s guilty plea, conviction, and offense details and the government’s res judicata argument that Honken’s guilty plea and conviction established essential elements of the offenses charged against Angela Johnson violated Angela Johnson’s due process rights, including her right to confront and cross-examine witnesses against her. 14. 4. The trial court erred in allowing evidence of alleged criminal activity and other bad acts of defendant and other persons occurring after the date of the killings to be received in evidence without a limiting instruction. 15. 5.

The trial court erred in receiving various hearsay statements made by Greg Nicholson, Dustin Honken and Terry DeGeus in violation of the Confrontation Clause. 16. 6. The trial court erred in admitting the testimony of Rick Held concerning Honken’s firearm purchase and Held’s conversation with an unknown female • caller in violation of the Rules of MERITS PHASE Evidence and the Confrontation Clause. 17. 7.

The trial court and Court of Appeals erred in allowing the testimony of McNeese and the fruits of that testimony for all the reasons previously urged, including the fact that such testimony was received in violation of Johnson’s Fifth and Sixth Amendment rights. 22. 8. The trial court erred in failing to exclude all evidence and suggestion that defendant was the principal for the reasons argued in defendant’s May 1, 2005 motion. [IDENTIFIED BY JOHNSON AS A “PENALTY PHASE” ISSUE] 18. 9. Mr.

Miller violated this court’s in limine ruling concerning defendant’s alleged role in the offense and violated her Fifth Amendment privilege against self incrimination during closing argument when he suggested that Angela Johnson may have been the shooter/trigger-person and when he argued that she had made no “claim of innocence” to various people who spoke to her and testified at trial. 12. lO.b. The trial court denied defendant a fair trial in violation of due process by reading to the jury and providing each of the jurors with an extensive and detailed set of Preliminary Instructions. 19.a. 10.c.i.

The court did not adequately define that the underlying drug offenses had to have been proven to have existed before the killings and had to be actively continuing at the time of the killings; 19.b. lO.c.ii. The instructions on the CCE murder failed to adequately protect defendant’s right to an unanimous verdict with respect to the predicate drug offenses comprising the alleged series. 19.c. lO.c.iii. The instructions on the CCE murder failed to advise the jurors properly with respect to the insufficiency of proof of a buyer-seller relationship vis-á-vis Dustin Honken. 19.(1. 10-c.iv.

The instructions did not require that the killings result from the conduct or actions of Angela Johnson. ELIGIBILITY PHASE Defendant’s No. Court’s No. Asserted Error 2. 1. The evidence, when viewed in the light most favorable to the “eligibility phase” verdict was not sufficient to establish those factors found by the jury beyond a reasonable doubt as required by due process. 4. 2. The weight of the evidence is against the jury’s verdicts and findings in each of the phases and a miscarriage of justice has occurred such that a new trial, in whole or in part, is warranted. PENALTY PHASE Defendant’s No. Court’s No.

Asserted Error 3. 1. The evidence when viewed in the light most favorable to the “penalty phase” verdict was not sufficient to establish the aggravators found by the jury beyond a reasonable doubt as required by due process. 4. 2. The weight of the evidence is against the jury’s verdicts and findings in each of the phases , and a miscarriage of justice has occurred such that a new trial, in whole or in part, is warranted. 20. 3.

The death penalty should be barred in this case where the government’s agent McNeese advised defendant that she could not receive the death penalty as part of his effort undertaken in concert with his government handlers to obtain a confession and the bodies of the five victims. To allow the death penalty to be pursued would be outrageous government conduct in violation of due process and fundamental fairness. 23. 4. The trial court erred in allowing the testimony of Mr.

Vest as to alleged jailhouse statements of Dustin Honken because such testimony violated the Confrontation Clause, was not constitutionally reliable, and its probative value was substantially outweighed by unfair prejudice. 24. 5. The court erred in allowing its former law clerk to testify to statements she purportedly overheard defendant make in her presence when the court itself was a witness to defendant’s own letter of apology that had been misplaced or lost and where the court’s remedy denied the defendant the opportunity to take the sting out of the evidence and created a false impression for the jury.

PENALTY PHASE_ 25. 6.' The court erred in allowing Robert Milbrath to read the poem of Brittany to the jury where Brittany was not a relative of any victim and such evidence was offered for its extreme emotional impact with the jury, denying defendant her due process right to a fan- sentencing. 26. 7.

The court erred in allowing testimony on cross-examination of Douglas Book that clearly bore no relation to his direct examination and where the testimony concerned allegedly recorded statements of the defendant of a purportedly threatening nature that were not the subject of any prior disclosure by the government, and whose probative value was greatly outweighed by unfair prejudice, all of which denied defendant due process of law. 27. 8. The trial court's conduct in interrupting and chastising defense experts Dr. Logan and Dr.

Hutchinson sua sponte in the presence of the jury denied defendant her due process right to a fair and impartial penalty proceeding. 34. . 9.

During the penalty phase closing, counsel for the government engaged in prejudicial improper argument when he suggested that the statutory mitigator for no prior criminal record did not apply and was not proven because Angela Johnson just “had not been caught” and when he further argued that the defense statutory mitigator concerning victim contributory responsibility was somehow created by the defense to “blame the victims.” These arguments denigrated these mitigating factors and misled the jury and denied defendant a fair penalty phase. 28. 10.

The trial court erred in denying defendant’s motion filed on June 3, 2005 to allocate [sic: allocute] before the trial jury. 29. 11. The trial court erred in striking the defense mitigating factor concerning Angela Johnson being under the substantial influence of Dustin Honken and thereby denied defendant due process. _PENALTY PHASE 10. 12. The trial erred in instructing the venire, and allowing the prosecution to argue, that it is permissible for jurors to consider mitigating circumstances, but that they can give such mitigators that they find “no weight” if they choose to do so.

This instruction violates the Eighth and Fourteenth Amendments and the Supreme Court’s mandate on the issue as set out in Eddings v. Oklahoma, 455 U.S. 104, 114-115 [,102 S.Ct. 869, 71 L.Ed.2d 1] (1982), Penry v. Lynaugh, 492 U.S. 302, 327-328 [,109 S.Ct. 2934, 106 L.Ed.2d 256] (1989) (Penry I), and Penry v. Johnson, 532 U.S. 782, 797[, 121 S.Ct. 1910, 150 L.Ed.2d 9] (2001) (Penry II)._ 30. 13.

The court’s instructional language concerning the mitigators in comparison to the instructions concerning the aggravating factors at both the eligibility and penalty phases, placed the mitigators in a comparatively negative and weaker light than the aggravators. The verdict forms invited the jury to evaluate whether the mitigators “applied” ' but did not have similar language for the aggravators.

The instructions told the jurors that the mitigators, including statutory mitigators, were things that the defense was merely “contending” constituted mitigating factors, while the prosecution “statutory” and “gateway” aggravators were given the imprimatur of law by having such labels affixed to them by the court. The instructions constituted an impermissible negative judicial comment on the mitigating factors and an impermissible positive comment on the aggravators, and denied defendant due process of law. 31. 14.

The trial court erred in denying defendant’s request to instruct the jury in the final penalty phase instructions that it had not found defendant to have engaged in substantial planning and premeditation with respect to the first four killings and that such finding was not subject to being revisited by the jury in their final penalty phase deliberations. In light of the evidence admitted at the third phase that was not admissible at the earlier phases, the failure to instruct deprived defendant of due process. PENALTY PHASE_ 33. 15.

The verdict forms were plainly erroneous and in conflict with the narrative instructions. The instructions correctly told the jury that if they could not unanimously agree upon the death penalty, the court would impose a life sentence. However, the verdict form required the jury to return an unanimous verdict itself imposing a life sentence without possibility of parole. The forms of verdict only allowed a “life” verdict if the jury unanimously agreed upon a life sentence.

This verdict form was in error in that it should have contained only an option for an unanimous death verdict and a second verdict form stating the jury could not unanimously agree upon a death sentence. This verdict form error denied defendant due process and her statutory right. 36. 16. One juror engaged in prejudicial misconduct when he sought and received information during the week preceding penalty phase arguments concerning prison conditions for an inmate serving a sentence of life without parole and one on death row. 32. 17.

The verdicts on numerous mitigators are contrary to the weight of the evidence and evidence that the jury was either confused by the instructions, declined to follow the instructions or simply disregarded the evidence and rendered verdicts that evidence a miscarriage of justice, all in violation of due process. EIGHTH AMENDMENT VIOLATION Defendant’s Court’s No. No. Asserted Error 35. 1. Imposition of the death penalty under the circumstances shown in this record would violate the Eighth Amendment. The government resisted both of Johnson’s post-trial motions on each and every ground asserted.

The court will turn to a detailed explication of its ruling on Johnson’s post-trial motions below, after a more detailed statement of the context of the “merits,” “eligibility,” and “penalty” verdicts on all ten counts against Johnson. II. INTRODUCTION A. Background As with other rulings in this case, the background to defendant Johnson’s motions in arrest of judgment and for judgment of acquittal or new trial begins with a survey of co-defendant Dustin Honken’s prior prosecutions in this judicial district, Johnson’s relationship with Honken, and a description of the charges against Johnson in this case.

In addition, the court must now add a

summary of the proceedings leading to Johnson’s conviction and jury recommendation for death sentences on eight of the ten capital charges against her. However, specific incidents or factual circumstances may require further amplification, in the legal analysis to follow, as they become relevant to issues that Johnson raises in her post-trial motions. 1. Prior prosecutions of Honken The genesis for the capital charges against Johnson is found in the 1993 prosecution of her then boyfriend, Dustin Honk-en, for drug-trafficking offenses in this district (“the 1993 case”).

As the Eighth Circuit Court of Appeals concisely explained, In April 1993, a grand jury in the Northern District of Iowa indicted [Honken] for conspiracy to distribute methamphetamine. After the disappearance of one or more prospective prosecution witnesses, the government dismissed the indictment. United States v. Honken, 184 F.3d 961, 963 (8th Cir.), cert. denied, 528 U.S. 1056, 120 S.Ct. 602, 145 L.Ed.2d 500 (1999).

Thus, the first prosecution of Honken in this district did not lead to a conviction, but it did give rise to the subsequent capital prosecutions of both Honken and Johnson, as explained more fully below. 2. The disappearance of the witnesses The witnesses whose convenient disappearance ended the 1993 prosecution against Honken were Gregory Nicholson, Lori Duncan, Duncan’s two daughters, Kandi and Amber Duncan, and Terry De-Geus. Nicholson and DeGeus had both been methamphetamine dealers for Honk-en.

At one time, Terry DeGeus had also been Angela Johnson’s boyfriend — albeit in a stormy and physically abusive relationship. The evidence at Johnson’s trial showed that, after Honken was indicted in 1993, he and Johnson, who was by then Honken’s girlfriend and pregnant with his daughter, became concerned that Nicholson might testify against Honken. Therefore, Honk-en and Johnson began a search for Nicholson, who had suddenly changed residences. Honken and Johnson eventually discovered that Nicholson had moved in with Lori Duncan and her two daughters, Kandi Duncan and Amber Duncan, ages ten and six, respectively.

On or about July 25, 1993, Johnson gained entry to the Duncan’s house by a ruse, followed by Honken, who was armed with a gun that Johnson had acquired for him. The evidence showed that, at least initially, Honken and Johnson used threats to the Duncans to extort a videotaped statement from Nicholson exonerating Honken of any drug-trafficking activity. However, Nicholson and the Duncans were eventually removed from the house at gunpoint, driven into the country in a car that Johnson had borrowed from her babysitter, the adults were bound, gagged, and tortured, and all four victims were shot to death.

Honken and Johnson then buried these four victims in a single shallow grave. The evidence at Johnson’s trial also showed that her relationship with DeGeus had been stormy: Johnson presented evidence at trial that DeGeus had often beaten her, including evidence of police responses to domestic abuse calls. However, DeGeus was not killed until several months after he and Johnson had separated and Johnson had become involved in a sexual relationship with Honken.

On or about November 5, 1993, approximately seven days after a Grand Jury questioned Johnson about DeGeus’s involvement in Honken’s drug-trafficking activities, Johnson lured DeGeus to a meeting with Honk-en in a secluded location, where Honken shot DeGeus several times, then beat him with a baseball bat before he died. De-Geus was buried in another shallow grave a few miles from the burial site of Nicholson and the Duncans. 3. Discovery of the murder victims’ bodies Law enforcement officers had always suspected that Honken and Johnson were involved in the disappearances of Nicholson, the Duncans, and DeGeus.

However, it was several years before they were able to gather enough evidence to charge either of them with crimes arising from the disappearance of these witnesses. In the meantime, Honken was again indicted on drug-trafficking charges on April 11, 1996 (“the 1996 case”), this time with co-defendant Timothy Cutkomp. In 1997, Honken pleaded guilty to two of the four drug-trafficking charges against him in the 1996 case, and he began serving his sentence on those charges. See, e.g., Honken, 184 F.3d at 963; see also United States v. Honken, 2 Fed.Appx. 611 (8th Cir.2001) (unsuccessful appeal of sentence).

Eventually, in 2000, Johnson was indicted in Case No. CR 00-3034-MWB for the killings of Nicholson, the Duncans, and DeGeus on non-capital charges of aiding and abetting the murder of witnesses in violation of 18 U.S.C. §§ 1512(a)(1)(

A) and (C), 1512(a)(2)(

A) or 1513(a)(1)(

A) and (C), 1111, and 2; one count of aiding and abetting the solicitation of the murder of witnesses, in violation of 18 U.S.C. §§ 373(a)(1) and 2; and one count of conspiracy to interfere with witnesses, in violation of 18 U.S.C. § 371. "While she was incarcerated pending trial on these charges, a jailhouse informant named Robert McNeese convinced Johnson that he could get someone already serving a life sentence to confess to the killings, if she could give him information that would provide a credible basis for the false confession.

In addition to other information about the killings, Johnson gave McNeese a map that showed where the five murder victims were buried. McNeese turned the map over to law enforcement officers. The map led law enforcement officers to the two shallow graves containing the bodies of the five murder victims. After the bodies were recovered, Johnson made an unsuccessful suicide attempt. 4.

The indictments in this case Following the discovery of the bodies, a Grand Jury handed down separate indictments against Honken and Johnson on August 30, 2001, charging each of them with ten capital offenses for the murders of Nicholson, the Duncans, and DeGeus. This second indictment against Johnson, in this case, Case No. CR 01-3046-MWB, charged Johnson with five counts of killing or aiding and abetting the killing of witnesses while engaging in a drug-trafficking conspiracy (“conspiracy murder”), in violation of 21 U.S.C. § 848(e)(1)(

A) and 18 U.S.C. § 2; and five counts of killing or aiding and abetting the killing of the same witnesses in furtherance of a continuing criminal enterprise (“CCE murder”), also in violation of 21 U.S.C. § 848(e)(1)(

A) and 18 U.S.C. § 2. The 2001 indictment against Honken charged him with the identical capital charges as well as seven non-capital offenses that mirrored the seven non-capital charges against Johnson in the 2000 indictment in Case No. CR 00-3034-MWB. On April 25, 2002, the government filed in both cases against Johnson its notice of intent to seek the death penalty on all of the charges relating to the murder of witnesses, that is, Counts 1 through 5 of the first indictment in Case No. CR 00-3034-MWB, and all ten of the charges in the second indictment in Case No. CR 01-3046-MWB.

Those notices identified the factors that the government contended warranted the imposition of the death penalty under the applicable death-penalty statutes. Various superseding indictments were filed in both cases against Johnson. Although the charges in the two indictments survived various challenges by Johnson, on November 15, 2004, the court granted the government’s November 3, 2004, renewed motion in Case No. CR 00-3034-MWB to dismiss, without prejudice, Counts 1-5 and portions of Count 7 of the superseding indictment.

The government’s goal in seeking to dismiss the charges or parts of charges in question was to eliminate the need for two juries or two trials and to prevent possible error, in light of a ruling of the Eighth Circuit Court of Appeals on interlocutory appeals that certain evidence from the jailhouse informant, Robert McNeese, and other evidence developed from his evidence, would not be admissible as to the counts of Case No. CR 00-3034-MWB that involved the alleged murders of five witnesses, but would be admissible as to charges that involved the alleged murders of the same witnesses in Case No. CR 01-3046-MWB.

As a result of the partial dismissal of the first indictment, the charges in Case No. CR 00-3034-MWB consisted of one count of aiding and abetting the solicitation of the murders of witnesses Timothy Cutkomp and Daniel Co-been, in violation of 18 U.S.C. §§ 373(a)(1) and 2, and one count of conspiracy to interfere with witnesses Cutkomp and Co-been, in violation of 18 U.S.C. § 371, but the latter charge no longer related to the murders of Nicholson, the Duncans, and DeGeus. Subsequently, on December 8, 2004, the government filed a Second Superseding Indictment in Case No.

CR 01-3046-MWB, which essentially consolidated the remaining counts in the two separate cases into a single indictment. Then, on December 14, 2004, the government moved to dismiss the superseding indictment in Case No. CR 00-3034-MWB, because all charges against Johnson were then consolidated into a single charging document in Case No. CR 01-3046-MWB. Johnson concurred in the dismissal of that indictment on December 15, 2004. Therefore, on December 15, 2004, the court dismissed the superseding indictment in Case No. CR 00-3034-MWB, and denied as moot all motions pending it that case, leaving Case No.

CR 01-3046-MWB as the only case against Johnson. On January 11, 2005, the government moved to dismiss Counts 11 and 12 of the Second Superseding Indictment in Case No. CR 01-3046-MWB, stating that the government no longer had any intention of pursuing those charges. By order dated January 15, 2005, the court granted the government’s motion to dismiss Counts 11 and 12 and also denied as moot several motions pertaining to those counts.

Thus, the only charges pending against Johnson from that time through trial were the charges of “conspiracy murder” in Counts 1 through 5 and the charges of “CCE murder” in Counts 6 through 10 of the Second Superseding Indictment in Case No. CR 01-3046-MWB. 5. Honken’s trial The case against Honken came to trial first in the fall of 2004. In Honken’s case, the government moved for an “anonymous” jury, and the court granted that motion. See United States v. Honken, 378 F.Supp.2d 880 (N.D.Iowa 2004) (originally filed under seal) (order for anonymous jury and determining degree of “anonymity”); United States v.

Honken, 378 F.Supp.2d 925 (N.D.Iowa 2004) (originally filed under seal) (order denying motion to reconsider order for anonymous jury and determining degree of “anonymity”). Therefore, jurors’ names, addresses, and places of employment, and the names of spouses and their places of employment, were not disclosed to the parties, their counsel, or the public, either before or after selection of the jury panel. However, each juror’s community of residence and the “nature” of his or her employment, and the “nature” of his or her spouse’s employment, were disclosed to the parties, their counsel, and the public.

Jury selection began in Honken’s case on August 17, 2004, and continued over twelve days until a jury was empaneled on September 8, 2004. The “merits phase” of the trial began that day and continued, usually four days a week, until the issue of Honken’s guilt or innocence was submitted to the jury on October 11, 2004. The jury returned a verdict on October 14, 2004, finding defendant Honken guilty of all seven non-capital and all ten capital charges against him.

The “penalty phase” of Honken’s trial on the capital charges commenced on October 18, 2004, and concluded on October 21, 2004, at which time, the jury began its “penalty phase” deliberations. An issue of improper contacts with a juror arose during the “penalty phase” deliberations. Ultimately, on October 25, 2004, the court excused one juror and substituted an alternate juror. The jury was then instructed to begin its “penalty phase” deliberations anew.

On October 27, 2004, the reconstituted jury rendered its “penalty phase” verdict, finding that a sentence of life imprisonment should be imposed upon Honk-en for the murders of Greg Nicholson, Lori Duncan, and Terry DeGeus, but that a sentence of death should be imposed for the murders of Amber and Kandi Duncan. The jury contact issue and the verdicts, in both the “merits phase” and the “penalty phase,” garnered considerable additional media coverage, some of which mentioned Angela Johnson’s alleged involvement in the killings, as well as Honken’s.

On December 16, 2004, the court heard evidence in support of post-trial motions in Honken’s case. The parties in Honken’s case briefed his post-trial motions through the spring of 2005, during which time, Johnson’s case came to trial. On July 29, 2005, approximately nine months after the conclusion of Honken’s trial, and approximately two months after the conclusion of Johnson’s trial, the court entered a two-hundred-six-page ruling denying Honken’s post-trial motions on all grounds. See United States v.

Honken, 381 F.Supp.2d 936 (N.D.Iowa 2005) (ruling on defendant’s post-trial motions for judgment of acquittal or new trial, including ruling on allegations of juror misconduct and jury tampering). On October 12, 2005, the court sentenced Honken to death on the charges involving the killings of Amber and Kandi Duncan and to life imprisonment on the-charges involving the killings of Lori Duncan, Greg Nicholson, and Terry DeGeus. The court ordered that the execution of Honken’s death sentence be carried out in Terre Haute, Indiana. Honken is now pursuing appeals from death row in Terre Haute, Indiana. B.

Significant Rulings Before And During Johnson’s Trial Before and during Johnson’s trial (and thus, before, during, and after Honken’s trial), the court entered a number of significant rulings in Johnson’s case. Many of those rulings are the subject of post-trial challenges, so that they will be summarized in pertinent portions of the present ruling. Nevertheless, the court deems it appropriate to survey the significant rulings before and during Johnson’s trial here, although' the survey will be by topic or category, rather than by chronology.

Johnson’s challenges to the sufficiency of the pleadings in her case were addressed in the following three rulings: United States v.

Johnson, 225 F.Supp.2d 982 (N.D.Iowa 2002) (ruling on appeal of magistrate judge’s orders regarding bill of particulars affirming magistrate judge’s order that the government specify, as to the drug conspiracy counts, the names of all known but unindicted co-conspirators, and, as to the CCE counts, all known supervisees, supervisors, managers, or organizers, and upon reconsideration, requiring that the government disclose the loeation(s), substance, time, place, and date of each overt act upon which the government intended to rely to prove the CCE underlying the offenses charged in Counts 6 through 10 of the second indictment); United States v.

Johnson, 225 F.Supp.2d 1009 (N.D.Iowa 2002) (ruling on-the defendant’s motion to dismiss the indictment on capital charges for failure to plead essential elements, denying the motion as to the “conspiracy murder” counts, but dismissing the “CCE murder” counts without prejudice to filing of a superseding indictment adequately pleading the essential element of the existence of the underlying CCE); United States v.

Johnson, 377 F.Supp.2d 686 (N.D.Iowa 2005) (order denying the defendant’s motion to dismiss for failure to charge offenses owing to purported omission of “substantive connection” between killings and drug conspiracy or CCE, finding the argument waived by untimely assertion, and that the superseding indictment did adequately charge the necessary “substantive connection”). Johnson also made various constitutional and other challenges to the charges against her. United States v.

Johnson, 239 F.Supp.2d 897 (N.D.Iowa 2002) (ruling denying the defendant’s motion to dismiss non-capital offenses on statute of limitations grounds); United States v. Johnson, 270 F.Supp.2d 1060 (N.D.Iowa 2003) (ruling denying the defendant’s motion to reconsider denial of motion to dismiss non-capital offenses on statute of limitations grounds); United States v.

Johnson, 239 F.Supp.2d 924 (N.D.Iowa 2003) (ruling denying the defendant’s motion to declare death-penalty provisions of 21 U.S.C. § 848 unconstitutional, which asserted that those provisions treat “aggravating factors” as mere “sentencing factors,” rather than as elements of capital offenses; that the “relaxed evidentiary standard” in the “penalty phase” of sentence determination under § 848 violates a defendant’s due process, confrontation, and cross-examination rights; and that the government’s “novel” attempts to overcome the unconstitutional aspects of the statute were not permissible); United States v.

Johnson, 378 F.Supp.2d 1049 (N.D.Iowa 2005) (order denying the defendant’s renewed motion to strike death penalty where government was no longer asserting her guilt as a “principal”). Johnson also challenged allegedly improperly acquired evidence. More specifically, she challenged use of the evidence from the jailhouse informant, Robert McNeese, as to the original, non-capital indictment, then as to the subsequent, capital indictment. While this court ruled in her favor, in substantial part, on these challenges, see United States v.

Johnson, 196 F.Supp.2d 795 (N.D.Iowa 2002) (ruling on the defendant’s motion to suppress evidence from jailhouse informant as to indictment on non-capital offenses); United States v. Johnson, 225 F.Supp.2d 1022 (N.D.Iowa 2002) (ruling on the defendant’s motion to suppress evidence from jailhouse informant as to subsequent indictment on capital offenses), the Eighth Circuit Court of Appeals was less sympathetic, and overturned much of this court’s rulings, thereby making the evidence from McNeese admissible with only limited restrictions. See United States v.

Johnson, 352 F.3d 339 (8th Cir.2003) (panel rehearing and amplification of prior decision reversing in substantial part the district court’s ruling and holding, instead, that evidence obtained by McNeese before September 11, 2000, was admissible under the first indictment; that evidence obtained by McNeese on or after that date was inadmissible on the first indictment; but that all of the evidence obtained by McNeese was admissible on the second indictment), cert. denied, — U.S. -, 125 S.Ct. 76, 160 L.Ed.2d 45 (2004); United States v.

Johnson, 338 F.3d 918 (8th Cir.2003) (first panel decision reversing the district court in substantial part). Also, Johnson sought and obtained from this court an order for return of ostensibly privileged documents inadvertently disclosed to law enforcement officers and then provided to the prosecutors. See United States v.

Johnson, 378 F.Supp.2d 1041 (N.D.Iowa 2005) (originally filed under seal) (order for return to the defendant of a chronology of the defendant’s life prepared by the defendant’s mitigation specialist obtained by law enforcement officers when the defendant sent it to a third party improperly marked as legal mail). Johnson, and the government as well, also challenged the admissibility of various kinds of evidence, generating several substantial pretrial rulings. See United States v. Johnson, 354 F.Supp.2d 939 (N.D.Iowa 2005) (ruling on first round of pretrial motions); United States v.

Johnson, 362 F.Supp.2d 1043 (N.D.Iowa 2005) (ruling on second round of pretrial motions); United States v. Johnson, 379 F.Supp.2d 1005 (N.D.Iowa 2005) (ruling denying the defendant’s motion to exclude evidence of identification of remains where the defendant had stipulated to identity of remains); United States v. Johnson, 377 F.Supp.2d 689 (N.D.Iowa 2005) (order granting in part and denying in part the defendant’s motion to exclude evidence and argument that she acted as a “principal” in the alleged killings); United States v.

Johnson 378 F.Supp.2d 1051 (N.D.Iowa 2005) (order on the defendant’s motion to exclude hearsay testimony during the “penalty phase” on Confrontation Clause, due process clause, and statutory grounds, recognizing that “trifurcation” provides adequate protection for these constitutional rights). Several of the specific rulings in these decisions are challenged again, in Johnson’s post-trial motions. Johnson’s intention to assert her mental condition as a mitigating factor in the “penalty phase,” if any, engendered two substantial rulings. See United States v.

Johnson, 362 F.Supp.2d 1043 (N.D.Iowa 2005) (ruling on second round of pretrial motions, including ruling on the government’s motion for court-ordered mental examination of the defendant) (also identified above as a ruling on the admissibility of evidence); United States v. Johnson, 383 F.Supp.2d 1145 (N.D.Iowa 2005) (ruling on management of experts, where the defendant asserted her Fifth Amendment right against self-incrimination in response to offense-specific questions). Finally, jury and trial management issues generated substantial rulings.

First, the court considered, sua sponte, the proper degree of case-specific questioning, if any, that is permissible in the course of life- or death-qualifying prospective jurors. See United States v. Johnson, 366 F.Supp.2d 822 (N.D.Iowa 2005). The court also ruled that Johnson’s trial would be “trifurcated” into three phases: (1) a “merits phase,” to determine guilt or innocence of the charged offenses; (2) an “eligibility phase,” to determine whether one “gateway aggravating factor” identified in § 848(n)(

l) and one or more of the “statutory aggravating factors” in § 848(n)(2) through (12) were present; and (3) a “penalty phase,” to determine whether “non-statutory aggravating factors” and “mitigating factors” were present and “ ‘whether the aggravating factors found to exist sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of mitigating factors, whether the aggravating factors are themselves sufficient to justify a sentence of death.’ ” See United States v. Johnson, 362 F.Supp.2d 1043, 1099-1111 (N.D.Iowa 2005) (quoting 21 U.S.C. § 848(k)).

Subsequently, in response to Johnson’s challenge to hearsay testimony during the “penalty phase” on Confrontation Clause, Due Process Clause, and statutory grounds, the court ruled that “trifurcation” provided adequate protection for these constitutional rights. See United States v. Johnson 378 F.Supp.2d 1051 (N.D.Iowa 2005) (also mentioned above as a ruling on admissibility of evidence). These rulings set the stage for Johnson’s trial on the ten capital offenses charged against her. C. Johnson’s Trial 1.

The charges at trial Johnson’s case came to trial approximately five-and-one-half months after the conclusion of Honken’s trial, but while post-trial motions were still pending in Honken’s case. Prior to Johnson’s trial, the government withdrew its allegations that Johnson was a “principal” in the murders and, instead, proceeded to trial only on the theory that Johnson “aided and abetted” each of the “conspiracy murders” and “CCE murders.” See Government’s April 29, 2005, Motion To Strike Language From Indictment (docket no. 449); Order, April 29, 2005 (docket no. 450) (granting motion to strike).

Therefore, at the time of trial, Counts 1 through 5 of the Indictment, the “conspiracy murder” counts, charged that, on or about July 25, 1993, in the case of Nicholson and the Duncans, and on or about November 5, 1993, in the case of DeGeus, while Angela Johnson was knowingly engaging in a conspiracy to commit drug-trafficking offenses, Angela Johnson aided and abetted the intentional killings of the named individuals, and such killings resulted, all in violation of 21 U.S.C. § 848(e)(1)(

A) and 18 U.S.C. § 2. Somewhat more specifically, Count 1 alleged the “conspiracy murder” of Gregory Nicholson; Count 2 alleged the “conspiracy murder” of Lori Duncan; Count 3 alleged the “conspiracy murder” of Kandi Duncan; Count 4 alleged the “conspiracy murder” of Amber Duncan; and Count 5 alleged the “conspiracy murder” of Terry DeGeus.

Similarly, Counts 6 through 10 of the Indictment, the “CCE murder” counts, charged that, on or about July 25, 1993, in the case of Nicholson and the Duncans, and on or about November 5, 1993, in the case of DeGeus, while Johnson was working in furtherance of a “continuing criminal enterprise” (CCE), Johnson aided and abetted the intentional killings of the named individuals, and such killings resulted, also all in violation of 21 U.S.C. § 848(e)(1)(

A) and 18 U.S.C. § 2. Somewhat more specifically, Count 6 alleged the “CCE murder” of Gregory Nicholson; Count 7 alleged the “CCE murder” of Lori Duncan; Count 8 alleged the “CCE murder” of Kandi Duncan; Count 9 alleged the “CCE murder” of Amber Duncan; and Count 10 alleged the “CCE murder” of Terry DeGeus. 2.

Jury selection As in Honken’s case, well in advance of trial, the court authorized the use of an extensive juror questionnaire to obtain basic biographical information about each prospective juror, as well as more detailed information about the juror’s views on trial-related issues, such as the death penalty. Also as in Honken’s case, the court authorized Johnson’s defense team to hire a jury consultant, who participated in the drafting of the juror questionnaire.

Unlike Honken’s jury, Johnson’s jury was not “anonymous,” so potential jurors in Johnson’s case were asked in the juror questionnaire for some additional biographical information that had not been available in Honken’s case. Nevertheless, the prospective and final jurors in Johnson’s case were identified in court only by number during jury selection and other court proceedings to protect juror privacy from excessive media attention, to protect juror privacy from intrusion by other interested members of the public, and also to limit the potential for jurors to be exposed to extrajudicial information.

The questionnaire was distributed to eight hundred prospective jurors. If a questionnaire was returned as undeliverable, Clerk’s Office personnel attempted to determine whether the prospective juror had moved or died and, if possible, would resend the questionnaire to the prospective juror. Based on directions from the court, the Clerk’s Office excused jurors who could not be located. Prior to trial, counsel for the parties reviewed the hundreds of responses to the juror questionnaires that had been returned. The parties then agreed to excuse over one-hundred-eighty prospective jurors for hardship.

The remaining prospective jurors were randomly sorted into daily panels of fifteen and each juror was notified of the day on which his or her panel was to appear for preliminary jury selection. After panel assignment notices were sent out, the court excused several additional jurors for hardship based on renewed requests for excuses from service. Also, the court had directed the parties to identify those prospective jurors whom the parties agreed had professed in their questionnaires such extreme views for or against the death penalty that they obviously could not qualify for service in this death-penalty case.

However, the parties did not do so before the jurors were sorted into daily panels, as the court had contemplated, but did so only after jury selection started. Consequently, many more jurors were excused by agreement, in the course of jury selection instead of before jury selection, on the basis of their obvious inability to qualify for service in this capital case. These jurors were often excused only one or two days before they were to appear with their daily panels.

Therefore, despite the best efforts of Clerk’s Office personnel to move willing jurors from later panels to earlier panels to fill panel vacancies created by the parties’ belated agreements to excuse obviously unqualified jurors, the court and the parties often did not have “full” daily panels of fifteen potential jurors to question during jury selection. Jury selection commenced on April 12, 2005. By agreement of the parties, the jury selection process was somewhat different than it had been in Honken’s case.

Specifically, each party was allocated twenty peremptory challenges for prospective trial jurors, as provided by Rule 24(b)(1) of the Federal Rules of Criminal Procedure, and three peremptory challenges for prospective alternate jurors, as provided by Rule 24(c)(4)(C). The court denied Johnson’s pretrial request for “additional” peremptory challenges or for more peremptory challenges than the government was allocated.

The agreed plan was that the parties were each allocated fifteen of their twenty peremptory challenges for prospective trial jurors to be used “on the fly” at any time during jury selection, and five peremptory challenges to be “reserved” for use on the day that sufficient prospective trial jurors had been qualified. After prospective jurors on each daily panel had been questioned by both the court and the parties, as a group and individually, and any requests to strike prospective jurors for cause had been granted, the parties were allowed to use however many of their peremptory challenges they deemed necessary.

The parties agreed to alternate peremptory challenges, at least until one party was satisfied, at which point the other party could continue to exercise peremptory challenges, if that party so desired. The parties also agreed to alternate which party would exercise the first peremptory challenge each day of jury selection. In this manner, selection of trial jurors was to continue until twenty-two prospective jurors were qualified, whether or not the parties had each used their fifteen “on-the-fly” peremptory challenges.

The parties would then use their five “reserved” peremptory challenges each, alternating strikes, to trim the panel of twenty-two qualified trial jurors to the final twelve trial jurors. Once sufficient trial jurors were qualified, the parties agreed that jury selection would continue with the daily panels, in the same manner, for the selection of alternate jurors. Each party was allocated three “on-the-fly” peremptory challenges for this phase of jury selection.

The parties agreed to seat six alternate jurors and agreed, further, that jury selection would be completed as soon as sufficient alternate jurors had been qualified, without the exercise of any “reserved” peremptory challenges to alternate jurors. As it turned out, Johnson had used all fifteen of her “on-the-fly” peremptory challenges at the end of the ninth day of jury selection, April 22, 2005, but not enough prospective, trial jurors had been qualified at that point. The court denied Johnson’s request for additional “emergency” peremptory challenges.

Therefore, jury selection continued until twenty-two trial jurors were qualified with only strikes for cause available to Johnson. The necessary tally of trial jurors was reached on day twelve of jury selection, April 28, 2005, at which time, the government forfeited the six “on-the-fly” peremptory challenges that it had not used. Jury selection continued on day twelve for purposes of selecting alternate jurors, with the parties each rearmed with their three “on-the-fly” peremptory challenges to prospective alternate jurors.

On day thirteen, April 29, 2005, after having the chance to consider overnight how to use their “reserved” peremptory challenges, the parties each exercised those challenges to qualified prospective trial jurors, thereby selecting the final twelve trial jurors. Selection of alternate jurors also continued that day, with the defendant exhausting her peremptory challenges to alternate jurors. The full complement of six alternate jurors was obtained on day sixteen, May 3, 2005, without the government exhausting its peremptory challenges to prospective alternate jurors.

The jurors who had been finally qualified as either trial or alternate jurors were recalled and empaneled on May 4, 2005. However, the alternate jurors were not informed of their alternate status until the end of evidence in the “merits phase.” 3. The “meritsphase” At the beginning of the “merits phase,” on May 4, 2005, after the jury was empaneled, the court read a detailed set of Preliminary Jury Instructions.

The court had prepared the Preliminary Jury Instructions after considering the submissions by the parties and after providing the parties with various draft versions of its own for the parties’ review and comments. The parties were also allowed to make any final objections to the Preliminary Jury Instructions on the record before those Instructions were read to the jurors.

Among other objections, the court overruled Johnson’s objection that the Preliminary Jury Instructions were “a playbook for the government.” In the course of the “merits phase,” during ten trial days, the government called forty-five witnesses, submitted into evidence two-hundred-twelve exhibits, and used two demonstrative exhibits. Johnson rested without calling any witnesses or submitting any exhibits or other evidence. On May 23, 2005, the court read Final Jury Instructions on the “merits,” also prepared in consultation with the parties, and the parties made their closing arguments.

After the parties’ arguments, the court read Final Jury Instructions on deliberations, and after identifying the alternate jurors, sent the trial jurors to deliberate at 2:57 p.m. The court then admonished and excused four of the alternate jurors until recalled, if necessary, and excused two of the alternate jurors from all further service in this case. The jury returned a verdict on the after-, noon of May 24, 2005, finding Johnson guilty of “aiding' and abetting” the murders charged in all ten capital counts.

More specifically, the jurors found Johnson guilty of “aiding and abetting” the “conspiracy murders” in Counts 1 through 5, and that each count involved a conspiracy to distribute and manufacture 100 grams or more of actual (pure) methamphetamine and to distribute and manufacture 1000 grams or moré of a methamphetamine mixture.

The jury also found Johnson guilty of “aiding and abetting” the “CCE murders” in Counts 6 through 10; that the government had proved twelve of the thirteen violations alleged to constitute the series of three or more violations that were part of the CCE; and that all seven of the violations that allegedly occurred either before or both before and after the killings had, in fact, occurred either before or both before and after the killings.

The jury also found that all eight persons identified by the government were the “five or more persons” acting “in concert” with Dustin Honken in the CCE, and also found that each such person was a member of the CCE before (and in the case of Timothy Cutkomp and Angela Johnson, both before and after) the killings. Because the jury had found Johnson guilty of capital offenses, the trial continued with the “eligibility phase.” 4. The “eligibilityphase” The “eligibility phase” of Johnson’s trial began and ended on May 31, 2005.

No evidence was presented during this phase of the trial, only arguments by the parties and “Eligibility Phase” Instructions To The Jury by the court. The four remaining alternate jurors were again in attendance for the instructions and arguments on Johnson’s “eligibility” for the death penalty, but did not participate in the jury’s deliberations.

The government asserted only one of the four “gateway aggravating factors” identified in 21 U.S.C. § 848(n)(1) in the “eligibility phase,” that factor being that Johnson “intentionally engaged in conduct intending that the victim[s] be killed or that lethal force be employed against the victim[s], which resulted in the death of the vietim[s].” 21 U.S.C. § 848(n)(1)(C).

The government asserted only the following three “statutory aggravating factors”: for Counts 1 through 10, that Johnson “committed the offense after substantial planning and premeditation,” 21 U.S.C. § 848(n)(8); for Counts 1 and 6 (Gregory Nicholson), 2 and 7 (Lori Duncan), and 5 and 10 (Terry DeGeus), that Johnson “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); and for Counts 3 arid 8 (Kandi Duncan) and 4 and 9 (Amber Duncan), that “[t]he victim was particularly vulnerable due to ... youth.” 21 U.S.C. § 848(n)(9).

The “eligibility phase” was submitted to the jury at 10:30 a.m. on May 31, 2005, and the alternate jurors were retained at the courthouse, in a separate location from the trial jurors, in case proceedings entered the “penalty phase.” The jury returned its “eligibility phase” verdict at 1:33 p.m., finding Johnson “eligible” for the death penalty on all ten capital counts. See “Eligibility Phase” Verdict Form (docket no. 545) (Step Three).

Somewhat more specifically, the jury found that, for all ten counts, “[t]he defendant intentionally engaged in conduct intending that the victim in question be killed or that lethal force be employed against the victim, which resulted in the death of the victim.” “Eligibility Phase” Verdict Form (Step One).

As to “statutory aggravating factors,” the jury found that “[t]he defendant committed the offense in question after substantial planning and premeditation” only as to Counts 5 and 10, which charged the killing of Terry DeGeus, but did not so find for the other eight counts, which charged the killings of Nicholson and the Duncans, on which this “statutory aggravating factor” had also been asserted.

The jury also found that the killings of Gregory Nicholson in Counts 1 and 6, Lori Duncan in Counts 2 and 7, and Terry DeGeus in Counts 5 and 10, the only killings for which this “statutory aggravating factor” was submitted, had each been committed “in an especially heinous, cruel, or depraved manner,” in that each killing involved both “torture” and “serious physical abuse.” Finally, the jury found that, in the killings of Kandi Duncan in Counts 3 and 8, and Amber Duncan in Counts 4 and 9, the only killings for which this “statutory aggravating factor” was submitted, “[t]he victim was particularly vulnerable due to her young age.” “Eligibility Phase” Verdict Form, Step Two.

In light of these “eligibility” verdicts on all ten counts, Johnson’s trial continued into the “penalty phase” for all ten counts. 5. The “penaltyphase” The “penalty phase” of Johnson’s trial began immediately after the “eligibility” verdicts on the afternoon of May 31, 2005, with the reading of Preliminary “Penalty Phase” Jury Instructions, which had, again, been prepared in consultation with the parties, and the parties’ opening arguments.

The following day-and-a-half were devoted to presentation of the government’s “penalty phase” case, which consisted of fourteen witnesses, including relatives of the victims who provided “victim impact” testimony, and thirty-four exhibits. Johnson began presenting her “penalty phase” case on the afternoon of June 2, 2005, and her case continued through the next three-and-one-half trial days. Johnson’s “penalty phase” case consisted of twenty-six witnesses, including Johnson’s daughter by Dustin Honken and other members of her family, and eighty-five exhibits.

Scheduling problems required a hiatus in the trial until June 20, 2005, when the court read the Final “Penalty Phase” Jury Instructions and the parties presented their closing arguments. The “penalty phase” of Johnson’s trial was submitted to the jury at 11:54 a.m. on June 20, 2005.

The jury returned its “penalty phase” verdict the next day, June 21, 2005, at 3:35 p.m., unanimously recommending the death penalty for the killing of Lori Duncan, as charged in Counts 2 and 7, Kandi Duncan, as charged in Counts 3 and 8, Amber Duncan, as charged in Counts 4 and 9, and Terry DeGeus, as charged in Counts 5 and 10, but recommending “[a] sentence of life imprisonment without possibility of parole” for the killing of Gregory Nicholson, as charged in Counts 1 and 6.

More specifically, in Step One of the “Penalty Phase” Verdict Form (docket no. 593), concerning “non-statutory aggravating factors,” the jurors rejected a finding that “[tjhe defendant would be a danger in the future to the lives and safety of other persons” as to all counts, but unanimously found the other three “non-statutory aggravating factors” asserted by the government as to all counts on which they were asserted, obstruction of justice (Counts 1 through 10), aiding abetting multiple murders in a single episode (Counts 1 through 8), and injurious effect upon the victim’s family (Counts 1 through 10).

In Step Two, all jurors rejected three of Johnson’s “mitigating factors” as to all counts, but at least one juror found each of the other eighteen “mitigating factors” expressly asserted by counsel for one or more counts, and two jurors identified Johnson’s suicide attempt as an additional “mitigating factor.” However, no juror found “[a]ny residual or lingering doubts as to Angela Johnson’s guilt or innocence or her role in the offenses, even though those doubts did not rise to the level of ‘reasonable doubts’ under the instructions given to [the jurors] during the ‘merits phase’ of the trial,” which the court had also submitted as an additional “mitigating factor.” “Penalty Phase” Verdict Form, Step Two.

Consequently, absent relief on her post-trial motions, appeal, or post-conviction relief proceedings, Johnson will suffer the death penalty for the killings of Lori Duncan, Kandi Duncan, Amber Duncan, and Terry DeGeus, but life imprisonment for the killing of Greg Nicholson. D. Post-Trial Proceedings While awaiting the “penalty phase” verdict, the court extended Johnson’s deadline for post-trial motions to and including July 29, 2005. See Minutes for June 21, 2005 (docket no. 595).

Subsequently, following a hearing on another matter, the court granted Johnson a further extension to and including August 19, 2005, to file her post-trial motions. See Minutes for June 23, 2005 (docket no. 607); Order of June 23, 2005 (docket no. 608). On August 19, 2005, Johnson filed her Motion For Judgment Of Acquittal Or For New Trial (docket no. 634), identifying thirty-six grounds for relief from her conviction and penalties. Johnson did not accompany that motion with any supporting brief, in violation of local rules. See N.D. Ia. L.Cr.R. 47.1(a) (incorporating N.D. Ia.

L.R. 7.1 concerning motion procedure into criminal cases); N.D. Ia. L.R. 7.1(d) (specifying that, with any motion except for those specifically excepted, “the moving party must serve and file a brief containing a statement of the grounds for the motion and citations to the authorities upon which the moving party relies”). However, she did file a separate request for an extension to and including August 29, 2005, to file such a supporting brief (docket no. 635).

The court granted the requested extension, but noted that it would not set deadlines for the government’s response and any reply by Johnson until Johnson’s initial brief was actually filed. See Order of August 22, 2005 (docket no. 637). Also on August 19, 2005, Johnson filed her Motion In Arrest Of Judgment (docket no. 636), asserting two flaws in the charging documents that she asserts require relief from the judgment against her. That motion was accompanied by a brief.

After a further one-day extension of time to do so, Johnson filed her brief in support of her Motion For Judgment Of Acquittal Or New Trial on August 30, 2005 (docket no. 644). That same day, the government filed its Resistance To Defendant’s Motion In Arrest Of Judgment (642). On September 1, 2005, the court set a deadline of September 30, 2005, for the government’s resistance to Johnson’s Motion For Judgment Of Acquittal Or New Trial, exclusive of the purported juror misconduct issue identified as Johnson’s thirty-sixth ground for relief, and a deadline of October 21, 2005, for any reply by Johnson.

Order of September 1, 2005 (docket no. 646). By separate order of the same date, the court established a separate briefing

schedule for the purported juror misconduct issue, under which Johnson was given to and including September 12, 2005, to supplement her request for investigation and an evidentiary hearing on that issue, and the government was given to and including September 22, 2005, to file a response to the defendant’s supplement. On September 12, 2005, Johnson filed a brief concerning her request for investigation and an evidentiary hearing on her purported juror misconduct issue (docket no. 655), and the government filed a response to that brief on September 22, 2005 (docket no. 657).

Johnson filed a reply in further support of her request for investigation and an evidentiary hearing on her purported juror misconduct issue on September 26, 2005 (docket no. 658). On September 30, 2005, the government filed its Resistance To Defendant’s Motion For Judgment Of Acquittal Or New Trial (docket no. 660), and Johnson filed a reply in further support of that motion on October 24, 2005 (docket no. 668).

By order dated October 19, 2005 (docket no. 665), the court denied, at least for the time being, Johnson’s request for an evidentiary hearing on the alleged juror misconduct issue, and instead, set a briefing

schedule on the merits of the alleged juror misconduct issue. In the same order, the court set oral arguments on all of the issues raised in Johnson’s post-trial motions for November 16, 2005, in Sioux City, Iowa. The oral arguments were subsequently moved to Cedar Rap

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