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
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-

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
-3-

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

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-

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
4

One witness testified that Johnson had told her that Johnson aimed the firearm

at DeGeus while Honken beat him. 

-5-

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
-6-

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. 
-7-

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. 
-8-

We do not believe that the disparity between Honken’s and Johnson’s sentences

violates the Eighth Amendment. While the Supreme Court has “occasionally struck

down punishments as inherently disproportionate, and therefore cruel and unusual,”

Pulley v. Harris, 465 U.S. 37, 43 (1984), the Court’s review has traditionally entailed

“an abstract evaluation of the appropriateness of a sentence for a particular crime.”

Id. at 42-43. In other words, traditional proportionality review hinges on whether a

particular kind of crime warrants a particular punishment. For example, the Court has

concluded that imposing the death penalty for the rape of an adult woman “is grossly

disproportionate and excessive punishment for the crime of rape and is therefore

forbidden by the Eighth Amendment as cruel and unusual punishment.” Coker v.

Georgia, 433 U.S. 584, 592 (1977). Similarly, the Court has determined that the death

penalty is a disproportionate penalty for a defendant who is guilty of felony murder,

but who did not kill, attempt to kill, or intend or contemplate that a killing would

occur. Enmund v. Florida, 458 U.S. 782, 801 (1982). 

Johnson contends that the Eighth Amendment requires not only proportionality

between a sentence and a particular category of crime, but also proportionality

between codefendants’ sentences. We disagree. The Supreme Court has rejected

similar contentions, noting in McCleskey v. Kemp, 481 U.S. 279, 306-07 (1987), that

a defendant cannot “prove a constitutional violation by demonstrating that other

defendants who may be similarly situated did not receive the death penalty.” Id.; see

also United States v. Chauncey, 420 F.3d 864, 876 (8th Cir. 2005) (remarking that “a

defendant’s sentence is not disproportionate merely because it exceeds his codefendant’s sentence”), cert. denied, 126 S. Ct. 1480 (2006). It bears mention, too,

that although we assume that the government presented similar evidence in both

Honken’s and Johnson’s trials, the evidence may have differed slightly. In particular,

Johnson has not apprised us of the mitigation evidence Honken presented in his trial.

Two juries hearing similar, but not identical, evidence may well reach different

conclusions regarding the proper penalty for their respective defendants. In addition,

different verdicts may permissibly reflect not only differences between the facts
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-

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
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-

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
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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 noncapital cases, then defendants also need more peremptories than the government in

capital cases. Rational-basis review, however, does not require a perfect or exact fit

between the means used and the ends sought. Banker’s Life & Cas. Co. v. Crenshaw,

486 U.S. 71, 85 (1988) (noting that a statute need not be “perfectly calibrated in order

to pass muster under the rational-basis test”). The legislature is not required to

calculate with precision the exact number of challenges necessary to help secure the

defendant’s right to a fair trial. Nor is the legislature required to arrive at a perfect
-12-

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
-13-

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-
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.

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Salazar, 528 U.S. at 317. In reaching this conclusion, the Court noted that peremptory

challenges are “auxiliary” to the right of an impartial jury and that they are one means

of ensuring a fair trial, but are not themselves of “federal constitutional dimension.”

Id. at 311; see also Frazier, 335 U.S. at 505 (“the right [to peremptory challenges] is

given in aid of the party’s interest to secure a fair and impartial jury . . .”).

Accordingly, Johnson did not, to use her phrase, “waste” her peremptory challenges.

Instead, she “used the challenge[s] in line with a principal reason for peremptories:

to help secure the constitutional guarantee of trial by an impartial jury.” MartinezSalazar, 528 U.S. at 316.7

Johnson suggests that her case is distinguishable from Martinez-Salazar because

unlike Martinez-Salazar, who “did not ask for a makeup peremptory or object to any

juror who sat,” id. at 318 (Souter, J., concurring), Johnson requested additional

peremptory challenges and objected to juror 600. She also asserts that her case is

distinguishable, both from Martinez-Salazar, as well as cases applying MartinezSalazar, because of the sheer number of challenges she expended in removing jurors

that she thought should have been removed for cause. We do not consider this

sufficient reason to depart from the Martinez-Salazar rule. The language used by the

Court does not suggest that the rule of law Martinez-Salazar enunciates hinges on how

many peremptory challenges the defendant exercised for curative purposes or how the

defendant would have otherwise employed her challenges if she had not used them

curatively. The constitutional touchstone, we believe, is the right to a fair trial, and

we are not persuaded that Johnson has been deprived of this right. Nor has she shown

that her jury or the voir dire process was constitutionally objectionable in any other
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-

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).

 
-16-

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. 
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). 

10Because 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-

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
-18-

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
11Johnson 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-

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
12Johnson 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-

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
13We have considered carefully Johnson’s other contentions regarding the

elements of the CCE murder and conclude that they lack merit. 

-21-

mere “consumers”). The quantity of drugs coupled with the ongoing relationship also

suggests that Nicholson and DeGeus were not merely Honken’s customers. See

United States v. Prieskorn, 658 F.2d 631, 634-35 (8th Cir. 1981) (noting that the large

quantity of cocaine and evidence of an ongoing relationship with suppliers indicated

participation in conspiracy). We also note that Nicholson stored drugs for Honken.

In sum, we conclude that Honken supervised Nicholson and DeGeus and that the

elements of CCE murder were established.13

8. Admission of evidence relating to Honken’s guilty plea 

Johnson moved in limine for the exclusion of evidence pertaining to Honken’s

1997 guilty plea, conviction, and sentence. Although she appears to agree that the fact

of Honken’s 1997 conviction was relevant, she argued to the district court that neither

Honken’s sentence nor the “particular crimes” with which Honken was charged and

to which he pled guilty were relevant. The government responded that evidence of

the specific charges was relevant to provide context for statements that Honken made

to Cutkomp and Cobeen, but agreed that the sentence was not relevant. The district

court ordered that evidence of the sentence be excluded, but ruled that evidence

pertaining to the specific charges would be admitted. Accordingly, the government

was permitted to introduce exhibits 303 and 304, which reflected the crimes with

which Honken was charged, the sentences he received, and the amount of

methamphetamine for which he was held accountable. The government was also

allowed to introduce the transcript of Honken’s plea colloquy. During the meritsphase closing arguments, one of the prosecutors stated, “There were two [violations]

for which [Honken] pled guilty, Exhibits 303 and 304. In the evidence in this case —

and you’ll have them back in the jury room — set forth his guilty plea and conviction

as to two federal felony drug convictions.”
-22-

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
14Some of this evidence may have been relevant and admissible for other

purposes as well. 

15Johnson 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-

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
16We have considered Johnson’s other assertions regarding the admission of

hearsay in the merits phase and conclude that they lack merit.

-24-

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.
-25-

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
-26-

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).
-27-

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
17Johnson 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-

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
-29-

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,
18Doyle 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-

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
19It 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-

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
20One 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-

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
21We 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. 

22The 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-

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.
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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
23The 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. 

24As 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

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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
evidence and argument concerning aggravating factors that had not been considered

during the eligibility phase and on mitigating factors. 

25The 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.”

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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
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government presented only six victim-impact witnesses, that its presentation occupied

only 101 of 1100 pages of trial transcript, and that the defendant was able to present

a substantial amount of mitigation evidence).

16. The selection-phase verdict forms 

Johnson alleges that the verdict forms were erroneous and fatally defective

because they required the jury to either unanimously agree to a death sentence or

unanimously agree to a life sentence, whereas the law provides that a life sentence will

be imposed if any juror votes for life. She also argues that the verdict forms contradict

the district court’s accurate jury instructions on this topic. Because Johnson did not

object to the forms, we review them for plain error. United States v. Martinson, 419

F.3d 749, 753-54 (8th Cir. 2005).

The verdict forms do not expressly mention unanimity with respect to the final

verdict. Instead, the forms refer the jurors to two of the district court’s final selectionphase instructions, one of which states that if any one juror finds that death is not

justified for a particular count, the court will impose a sentence of life imprisonment

without the possibility of parole on that count. Two other instructions given to the

jury — but not referenced on the verdict form themselves — convey the same

information. The jurors were thus correctly informed that unanimity was required for

a death sentence, but not for a sentence imposing life in prison. There was no plain

error.

17. The government’s selection-phase closing 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
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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
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. 

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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
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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
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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
27There 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.

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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
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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
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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
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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.

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