In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1327

United States of America,

Plaintiff-Appellee,

v.

Darryl Lamont Johnson,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 96 CR 379--Suzanne B. Conlon, Judge.

Argued June 28, 2000--Decided August 3, 2000

 Before Posner, Easterbrook, and Manion, Circuit

Judges.

 Posner, Circuit Judge. The defendant, a highranking official of the Gangster Disciples, a

large Chicago street gang whose activities are

described in our recent opinion in United States

v. Jackson, 207 F.3d 910 (7th Cir. 2000), was

convicted of having ordered the murder of (1) a

person who was assisting in a federal criminal

investigation and (2) that person and one other

in furtherance of a continuing criminal

enterprise, and was sentenced to death. 18 U.S.C.

sec.sec. 924(i), 1121(a); 21 U.S.C. sec. 848(e).

The victims were gang members who had been

arrested but who had then been released pending

their trials and who the defendant feared were

working with the government to catch him. He does

not deny having committed the two murders; his

appeal primarily challenges the conduct of the

sentencing hearing. He does, however, raise one

point about the conduct of the trial itself--that

his right to represent himself was infringed--and

we begin there.

 Two weeks before the trial began, the defendant

filed a pro se motion captioned "Defendants

Motion to Proceed Pro-Se." In it he argued that

his lawyers’ representation of him was so

deficient that it violated his right to effective

assistance of counsel. But rather than asking for

the appointment of new counsel, the motion
concluded: "Petitioner knows absolutely nothing

about the law. But petitioner feels strongly that

as his life is on the line, he can do more for

his defense than his attorney’s have so far." It

is unlikely that his statement about knowing

nothing about the law is false modesty. The

defendant is not an educated person, and his IQ

is only 74.

 The motion was never ruled on. Apparently it had

gotten lost in the shuffle, United States v.

Taglia, 922 F.2d 413, 416 (7th Cir. 1991), for

the judge stated at a post-trial hearing that she

did not remember having seen it and that she

would have remembered it if she had seen it,

given the gravity and novelty of the case--this

was only the second federal death penalty trial

in the Northern District of Illinois since the

reinstatement of the federal death penalty, and

the first to result in a death sentence. The

defendant did not renew the motion. His lawyers

were unaware of and never mentioned it. He made a

number of pro se motions during the course of the

trial and in none did he express any

dissatisfaction with his lawyers or a desire to

represent himself.

 Although a defendant has an absolute right to

defend himself against a criminal charge, however

grave, unless he is mentally incompetent to

decide to do so, Godinez v. Moran, 509 U.S. 389,

396-400 (1993); Davis v. Greer, 13 F.3d 1134,

1138 (7th Cir. 1994), the right can be waived

either expressly or by implication. There are two

types of implied waiver. One, the only one that

can properly be called "waiver," is where an

intention to relinquish the right, although not

expressed, can be inferred. The other, properly

called "forfeiture" rather than "waiver" in

recognition that waiver is canonically defined as

an intentional relinquishment of a right, Johnson

v. Zerbst, 304 U.S. 458, 464 (1938), is where the

right is taken away from its holder as a penalty

for failure to assert it in a clear and timely

manner. It is not always clear when a case is one

of actually implied waiver or one of forfeiture.

The "waiver" of the right of self-representation

illustrates the problem. When as in the usual

case the defendant is represented by a lawyer,

the fact of representation is taken to be the

defendant’s waiver of his right to represent

himself, since "representation by counsel and

self-representation are mutually exclusive

entitlements," Cain v. Peters, 972 F.2d 748, 750

(7th Cir. 1992), so that "assertion of one

constitutes a de facto waiver of the other."

United States v. Singleton, 107 F.3d 1091, 1096

(4th Cir. 1997). "Defendants forfeit selfrepresentation by remaining silent at critical

junctures before or during trial." Cain v.
Peters, supra, 972 F.2d at 750. See also Munkus

v. Furlong, 170 F.3d 980, 983-84 (10th Cir.

1999). Failure to assert the right of selfrepresentation waives it without regard to the

intentions of the defendant in not asserting it.

 Among the grounds (catalogued in id. at 984) for

forfeiture of the right is delay in asserting it.

United States v. Oakey, 853 F.2d 551, 553 (7th

Cir. 1988). This case was more than a year old,

and on the verge of trial, when the defendant,

who until then had been represented by counsel,

filed his motion. But because a motion for selfrepresentation is timely if made before the jury

is empaneled, United States v. Akers, 215 F.3d

1089, 1097 (10th Cir. 2000); United States v.

Walker, 142 F.3d 103, 108 (2d Cir. 1998), unless

made for the purpose of delaying or disrupting

the trial, Moore v. Calderon, 108 F.3d 261, 264

(9th Cir. 1997), which is not argued, we set the

question of timeliness to one side and with it

the issue of forfeiture of the defendant’s right

to represent himself. What this is is a case of

implicit waiver in the strict, the intentional

sense. The defendant did not want to represent

himself, though he didn’t say so in so many

words. The purpose of the motion, it is apparent,

was to express in the most dramatic possible

fashion his current dissatisfaction with his

lawyers. No even marginally rational person who

knew absolutely nothing about the law would want

to defend himself against a capital charge

without a lawyer’s assistance. The defendant’s

fit of dissatisfaction with his lawyers soon

passed. He neither moved to have them replaced

nor renewed his motion to be permitted to

represent himself. His appellate counsel, a

specialist in defending death-penalty cases, has

not pointed to any conduct by the defendant’s

trial lawyers that might have impelled the

defendant to think himself better able than they

to defend the case. The only plausible inference

from the defendant’s conduct is that he

acquiesced in the denial by judicial inaction of

his motion and thereby deliberately relinquished

his right of self-representation. Cain v. Peters,

supra, 972 F.2d at 750; Wilson v. Walker, 204

F.3d 33, 37-39 (2d Cir. 2000) (per curiam); Brown

v. Wainwright, 665 F.2d 607, 610-11 (5th Cir.

1982) (en banc); United States v. Montgomery, 529

F.2d 1404, 1406 (10th Cir. 1976).

 We add that as he has made no representation

that if we order a new trial he will persist in

his desire to represent himself, his claim that

his right of self-representation was infringed

may be moot, as well as having no merit for the

reasons just indicated. For if as we expect he

would be represented by lawyers at any new trial,

he would not have vindicated the right of self-
representation upon which he premises his appeal

from the denial of that right. The point is not

that at a subsequent trial he would be estopped

to invoke his right to counsel, an argument

rejected in the only cases to have considered the

issue. United States v. McKinley, 58 F.3d 1475,

1483 (10th Cir. 1995); Johnstone v. Kelly, 812

F.2d 821 (2d Cir. 1987) (per curiam). The point

is rather that if he wants on remand exactly what

he had in his first trial, namely representation

by competent lawyers, it is difficult to

understand what he lost by the denial of his

motion: he had at the first trial what he wants

at the second.

 We turn to the sentencing issues. One of the

jurors who participated in the deliberations that

resulted in the defendant’s being found guilty

failed to show up for the sentencing hearing and

was immediately replaced by one of the

alternates, who had sat through the trial but had

not participated in the jury deliberations. The

judge made no effort to find out why the juror

who was replaced had not shown up, but it is a

sound practice immediately to replace a no-show

juror, as authorized by Fed. R. Crim P. 24(c);

see United States v. Peters, 617 F.2d 503, 505

(7th Cir. 1980) (per curiam); United States v.

Gay, 967 F.2d 322, 324-25 (9th Cir. 1992); United

States v. Rodriguez, 573 F.2d 330, 332 (5th Cir.

1978); United States v. Domenech, 476 F.2d 1229,

1232 (2d Cir. 1973), out of consideration for the

remaining jurors and in order to remind them of

the seriousness of their duty.

 The defendant’s lawyer made no objection at

trial to dropping the tardy juror, or to the fact

that under the then Fed. R. Crim. P. 24(c)

(1998), the alternate juror should have been

discharged when the jury retired to consider the

defendant’s guilt, United States v. Patterson, 23

F.3d 1239, 1252 (7th Cir. 1994); United States v.

Josefik, 753 F.2d 585, 587 (7th Cir. 1985);

United States v. Webster, 162 F.3d 308, 347 (5th

Cir. 1998), or--the argument he now presses most

vigorously on us--that the participation of the

alternate in the sentencing deliberations

violated 18 U.S.C. sec. 3593(b)(1). That section

provides that a federal death-penalty sentencing

hearing is to be conducted "before the jury that

determined the defendant’s guilt," with certain

exceptions, as where the defendant waived his

right to a jury trial or the jury that determined

his guilt has already been discharged. sec.

3593(b)(2). The defendant argues that the rights

conferred by this provision and by Rule 24(c) are

ones his lawyer could not waive for him, and so

the failure to object at trial to their denial

should be disregarded.
 Certain rights are personal to the criminal

defendant. See, e.g., Fed. R. Crim. P. 11(c)(6)

("Before accepting a plea of guilty . . . the

court must address the defendant personally in

open court and inform the defendant of, and

determine that the defendant understands . . .

the terms of any provision in a plea agreement

waiving the right to appeal or to collaterally

attack the sentence"); Jones v. Barnes, 463 U.S.

745, 751 (1983) ("the accused has the ultimate

authority to make certain fundamental decisions

regarding the case, as to whether to plead

guilty, waive a jury, testify in his or her own

behalf, or take an appeal"); United States v.

Shukri, 207 F.3d 412, 416 (7th Cir. 2000); Sexton

v. French, 163 F.3d 874, 885 (4th Cir. 1998). But

rights that have a mainly tactical significance

and require legal training to appreciate and

weigh are for the defendant’s lawyer to assert or

to waive as the lawyer sees fit, e.g., United

States v. Boyd, 86 F.3d 719, 723 (7th Cir. 1996);

United States v. Washington, 198 F.3d 721 (8th

Cir. 1999); United States v. Plitman, 194 F.3d

59, 63 (2d Cir. 1999); see generally Wayne R.

LaFave, Jerold H. Israel & Nancy J. King,

Criminal Procedure sec. 11.6(a), pp. 598-603 (2d

ed. 1999), though subject of course to eventual

judicial second-guessing should the defendant

claim that the lawyer made a tactical blunder so

grave as to fall below the minimum level of

professionally competent representation.

 A highly pertinent example is jury selection.

United States v. Boyd, supra. For what we have

here is an alleged right to shape the composition

of the jury. And so if there is a right to insist

that should one of the jurors who deliberated on

guilt drop out before the sentencing hearing an

entire new jury be impaneled for sentencing, it

is a right that falls within the domain of

tactics rather than that of basic rights. This

conclusion is compelled by common sense as well

as by the decision in Boyd. Bearing in mind that

it takes only one juror to nix a death sentence,

a lawyer who senses that one or more of the

jurors who found his client guilty nevertheless

seems sufficiently simpatico not to vote for

death might prefer to retain the original panel

with the addition of one of the alternates than

to take his chances with a completely new panel.

The judge is not required to voir dire the

defendant to make sure the latter agrees with the

lawyer’s tactical decision. That would actually

handicap most criminal defendants by inviting

them to make tactical decisions that most of them

are incompetent to make.

 In any event we do not think that the procedure

that was employed violates the statute. The

statute makes no provision for the situation that
occurred here, leaving it to the good sense of

the judges to deal with. We find guidance to the

proper resolution in the 1999 amendment to Rule

24 of the Federal Rules of Criminal Procedure,

which, altering the previous practice (to which

we made reference earlier), allows the trial

judge to replace a regular juror with an

alternate during deliberations, which must then

recommence. Fed. R. Crim. P. 24(c)(3). In other

words, the fact that the alternate missed some of

the deliberations is no longer regarded as a

fatal objection, or indeed as any objection, to

his participating in the jury’s decision. Compare

United States v. Josefik, supra, 753 F.2d at 587.

The analogy to the procedure employed here is

close. The deliberations that eventuated in the

sentence of death were in two stages, a guilt

stage and a sentencing stage. The alternate

missed the first stage but participated in the

second. True, the entire deliberations did not

recommence; but the issues of guilt and of

punishment are sufficiently distinct that the

alternate didn’t have to hear the deliberations

on the former issue in order to be able to

participate meaningfully in the deliberations on

the latter issue. He had sat through the entire

trial, which is the important thing.

 The defendant argues that the alternate might

fear he had "missed" something in the part of the

deliberations that he had not been party to. But

that is equally true in a Rule 24(c)(3)

situation, since recommencing the deliberations

would not wipe out the original jurors’ memories

of whatever discussion had preceded the

alternate’s joining them. As someone not

committed to the defendant’s guilt, never having

voted on the question of guilt, the alternate

added at the sentencing stage might actually have

a greater inclination to lenity than the jurors

whom he was joining.

 The next issue is whether the defendant was

unfairly surprised by false testimony allegedly

presented by the government on rebuttal at the

sentencing hearing. To decide to impose

(technically, "recommend," but the recommendation

is binding, 28 U.S.C. sec. 3594) the death

penalty, the jury must decide that the

aggravating factors, that is, factors beyond the

murder itself that warrant imposing the ultimate

penalty on this defendant, sufficiently outweigh

any mitigating factors to justify the imposition.

sec. 3593(e). There is a list of aggravating

factors in section 3592(c) (for murder) but the

list is stated to be nonexhaustive. Evidence of

an aggravating or mitigating factor need not be

admissible under the rules of evidence. sec.

3593(c).
 The government alleged as a nonstatutory

aggravating factor in this case "future

dangerousness." The government pointed out that

gang leaders have been known (the boss of the

Gangster Disciples, Larry Hoover, notoriously) to

continue to direct the gang’s affairs from prison

either by telephone or through visitors, and that

the defendant himself, when in jail awaiting

trial, had threatened his codefendant. In

response the defendant called to the stand a

psychologist who had toured the federal prison in

Florence, Colorado, which is the maximum-security

prison in the federal system, the successor to

Alcatraz and Marion. Department of Justice,

"Release Preparation Program," 61 Fed. Reg.

38042-02, 38043 (Jul. 22, 1996); Mark Johnson,

"Colorado Facility is Pacesetter of Newest

’Supermax’ Prisons," Houston Chronicle, June 20,

1999, p. 8. He testified about the security

arrangements in the prison’s control unit, where

prisoners are kept essentially in solitary

confinement. He assured the jury that if it

recommended that the defendant be sentenced to

life in prison rather than to death, the

defendant would no longer be a threat to anyone,

since he could be sentenced to spend the rest of

his life in the control unit at Florence.

 In rebuttal the government put on a federal

prison warden, formerly an assistant warden at

Florence, to testify about Florence and about the

policies of the federal Bureau of Prisons. To the

extent that these policies are prescribed or

codified in statutes or regulations, as distinct

from being informal policies, this testimony was

improper, though the defendant makes no issue of

its admissibility and so any objection is waived.

Witnesses testify about fact, not law. When a

legal proposition is relevant to the jury’s

consideration, the proper procedure is for the

judge to instruct the jury on the proposition.

E.g., Bammerlin v. Navistar Int’l Transportation

Corp., 30 F.3d 898, 900 (7th Cir. 1994); Harbor

Ins. Co. v. Continental Bank Corp., 922 F.2d 357,

366 (7th Cir. 1990); Nieves-Villanueva v. SotoRivera, 133 F.3d 92, 99 (1st Cir. 1997);

Molecular Technology Corp. v. Valentine, 925 F.2d

910, 919 (6th Cir. 1991). If the Bureau of

Prisons is forbidden by law to confine a prisoner

in a control unit for his entire life on the

basis of evidence presented at his trial, that is

something for the judge to tell the jury, not for

a witness to testify to.

 Much of what the warden testified to was factual

in character, however, for example that Florence

has a limited capacity and its control unit can

accommodate only 68 inmates, that most murderers

and most gang leaders in federal prisons are not

at Florence, let alone in Florence’s control
unit, that most prisoners in Florence came there

after misbehaving at other facilities rather than

directly from being sentenced, and that even

prisoners in the control unit can have visitors

and can make one 15-minute telephone call a

month. He also testified that "it is not

permissible, by the Bureau of Prisons policy, to

keep an inmate in that status [i.e., in a control

unit] indefinitely."

 It is unclear whether he meant a purely informal

policy or was testifying to his understanding of

some legal restriction. But in fact there is a

legal restriction. Regulations by the Bureau of

Prisons, to which the Attorney General has

delegated her plenary authority over the

management of federal prisons, see 18 U.S.C.

sec.sec. 4001(b), 4042, require federal prison

wardens to consider six factors in deciding

whether to place an inmate in a control unit. All

six relate to the inmate’s behavior in prison,

such as possession of a weapon in the prison, 28

C.F.R. sec. 541.41(b)(3), or causing injury to

other people in the prison. sec. 541.41(b)(1).

The warden may consider a seventh factor, the

nature of the inmate’s offense of conviction, but

only "in combination with other factor(s) as

described in paragraph (b)." sec. 541.41(b)(7).

"An inmate may not be considered [for confinement

in a control unit] solely on [the basis of] the

nature of the crime which resulted in that

inmate’s incarceration." Id.

 If the Attorney General or the head of a federal

law enforcement or intelligence agency determines

"that there is a substantial risk that a

prisoner’s communications or contacts with

persons could result in death or serious bodily

injury to persons," the warden can be authorized

to take "special administrative measures" that

"may include housing the inmate in administrative

detention and/or limiting certain privileges,

including, but not limited to, correspondence,

visiting, interviews with representatives of the

news media, and use of the telephone, as is

reasonably necessary to protect persons against

the risk of acts of violence or terrorism." sec.

501.3(a). These restrictions may, however, be

imposed only in 120-day increments; and each

time, before they can be reimposed, the warden

must conduct the risk determination afresh. sec.

501.3(c).

 The limitations in these regulations imply that

the Bureau of Prisons could not assign a prisoner

directly upon his admission to the federal prison

system to spend the rest of his life in the

control unit without the possibility of

reconsideration. The regulation requiring the

bureau to review an inmate’s control unit status
"at least once every 60 to 90 days . . . to

determine the inmate’s readiness for release from

the [Control] Unit," 28 C.F.R. sec. 541.49(d),

points in the same direction.

 The facts to which the warden testified and the

law that he may or may not have been alluding to

point to the same conclusion, that there can be

no assurance that if the defendant were sentenced

to life in prison he could not commit further

serious crimes. The defendant calls the warden’s

testimony "false" and argues that since it came

in on rebuttal he didn’t have a chance to meet it

and so was unfairly surprised. If true (and if

the evidence was deemed prejudicial), this would

presumably entitle him to a new sentencing

hearing, just as, had the falsity neither been

discovered nor discoverable until after the

hearing had ended, he could have sought a new

hearing on the basis of newly discovered

evidence. See, e.g., United States v. Austin, 103

F.3d 606, 609 (7th Cir. 1997); United States v.

Reed, 986 F.2d 191, 192-93 (7th Cir. 1993);

United States v. Sinclair, 109 F.3d 1527, 1531-32

(10th Cir. 1997); United States v. Moore, 54 F.3d

92, 99 (2d Cir. 1995). But the warden’s

testimony, though it did not track the

regulations exactly, was not false. The

impression that he conveyed of practice and legal

policy was correct.

 We know from cases in this court involving

murders by prisoners in the control units of

federal prisons, see United States v. Fountain,

768 F.2d 790, modified, 777 F.2d 345 (7th Cir.

1985) (per curiam); United States v. Silverstein,

732 F.2d 1338 (7th Cir. 1984); United States v.

Fountain, 642 F.2d 1083 (7th Cir. 1981); cf.

Shoats v. Horn, 213 F.3d 140, 141 (3d Cir. 2000);

Echols v. Sullivan, 521 F.2d 206 (5th Cir. 1975)

(per curiam), that such units cannot be made

totally secure. And we know that anyone who has

access to a telephone or is permitted to receive

visitors may be able to transmit a lethal message

in code. We also know that nothing in federal law

authorizes a judge to sentence a prisoner to life

in the control unit. Quite apart from the fact

that "a sentencing court has no authority to

order that a convicted defendant be confined in a

particular facility, much less placed in a

particular treatment program," United States v.

Williams, 65 F.3d 301, 307 (2d Cir. 1995), a

prison control unit is an internal disciplinary

mechanism that is not intended or designed for

lifetime commitment. The Bureau of Prisons could

not, therefore, commit a prisoner to the control

unit for life, refusing to consider circumstances

that might render his joining the open population

of the prison harmless, such as extreme old age

or the dissolution of the gang with which he had
been affiliated. "Of course, administrative

segregation may not be used as a pretext for

indefinite confinement of an inmate" to a

segregation unit (i.e., a control unit). Hewitt

v. Helms, 459 U.S. 460, 477 n. 9 (1983); cf. Bono

v. Saxbe, 620 F.2d 609, 614 (7th Cir. 1980); In

re Long Term Administrative Segregation of

Inmates Designated as Five Percenters, 174 F.3d

464, 472 (4th Cir. 1999); United States v.

Felipe, 148 F.3d 101, 111 (2d Cir. 1998).

 A prison’s control unit is not intended as a

punishment for the crime that got the prisoner

into prison in the first place, like a sentence

of imprisonment at hard labor. Its purpose rather

is to deter and prevent violations of prison

disciplinary rules and to protect prisoners,

guards, and in some cases people outside the

prison, or the society at large, against

dangerous conduct by the prisoner. See 28 C.F.R.

sec. 541.40(a) ("in an effort to maintain a safe

and orderly environment within its institutions,

the Bureau of Prisons operates control unit

programs intended to place into a separate unit

those inmates who are unable to function in a

less restrictive environment without being a

threat to others or to the orderly operation of

the institution"). If, no matter what the nature

of the activities that got him into prison in the

first place, the prisoner poses no danger to

anyone that would justify putting him into or

keeping him in a control unit, such confinement

is, as the regulations we cited earlier make

clear, unauthorized.

 Against this the defendant cites recent cases in

which, he claims, federal judges have sentenced

criminal defendants to be confined in a control

unit. United States v. Felipe, No. S16 94 CR. 395

JSM, 1997 WL 220302 (S.D.N.Y. Apr. 29, 1997),

aff’d in relevant respect, 148 F.3d 101, 109-11

(2d Cir. 1998); United States v. Yousef, S12 93

CR. 180 (S.D.N.Y. Jan. 8, 1998) (sentencing

transcript); United States v. Jones, No. 96-458,

97-0355 (D. Md. 1998). Only Felipe involved a

judicial order, however, and the order didn’t

purport to sentence the defendant to the control

unit for life. The judge reserved the right

"hopefully to adjust the conditions, if a change

of circumstances occurs with the passage of

time"--which he soon did. Benjamin Weiser, "Judge

Gives OK For New Member of Prison Rec Club,"

Plain Dealer (Cleveland), March 13, 1999, p. A1.

(To our astonishment, the modification includes,

if the newspaper is to be believed, express

authorization for Felipe to consort with two of

the most notorious inmates in American prisons

today, Timothy McVeigh and Theodore Kaczynski.)

 The judge in the Felipe case found his authority
for sending the defendant to the control unit in

18 U.S.C. sec. 3582(d). That statute authorizes

the sentencing judge to "include as a part of the

sentence" of imprisonment for certain crimes,

including some of the noncapital drug-related

offenses of which our defendant was convicted and

that we have not discussed because there is no

challenge to the judgment regarding them, "an

order that requires that the defendant not

associate or communicate with a specified person,

other than his attorney, upon a showing of

probable cause to believe that association or

communication with such person is for the purpose

of enabling the defendant to control, manage,

direct, finance, or otherwise participate in an

illegal enterprise." That is a far cry from a

sentence to life imprisonment in a control unit,

as is the parallel Bureau of Prisons regulation

that we cited earlier. The statute requires the

government to be able to name a specific person

that it has probable cause to believe will

associate or communicate with the defendant for

illegal purposes--though the Second Circuit in

Felipe stretched the statute to permit the

sentencing judge to cut off the defendant from

contact with everyone in the world except

designated family members, 148 F.3d at 110. And

if the government does make the required showing,

the only consequence is that the defendant will

not be permitted to associate or communicate with

that person. It is doubtful whether the statute

authorizes indefinite confinement in the control

unit, as distinct from a limitation on visits,

phone calls, or association with specified other

inmates, though this we need not decide. All

other objections to the defendant’s effort to

rely on Felipe to one side, he did not argue in

the district court that he could be sentenced

under section 3582(d).

 The warden also testified that a member of the

Aryan Brotherhood, the most notorious of U.S.

prison gangs, had while imprisoned at Florence

managed to convey an order to members of the gang

at another prison to kill two inmates of that

prison, and that the order had been carried out.

The defendant objects, and the government

concedes, that this was hearsay evidence; but as

we noted earlier, the federal death-penalty

statute does not require that evidence of

aggravating and mitigating factors be admissible

under the rules of evidence, only that its

probative value not be outweighed by the danger

of its confusing, misleading, or prejudicing the

jury. 18 U.S.C. sec. 3593(c). The balancing is

committed to the discretion of the district

judge, United States v. Hall, 152 F.3d 381, 397

(5th Cir. 1998), not here abused. The incident

involving the Aryan Brotherhood murders, which is

consistent with previous conduct by that infamous
gang, see, e.g., United States v. McKinney, 954

F.2d 471, 472-74, 478-79 (7th Cir. 1992); Gometz

v. Henman, 807 F.2d 113 (7th Cir. 1986); United

States v. Fountain, supra; United States v.

Mills, 704 F.2d 1553, 1555 (11th Cir. 1983), came

to the warden’s attention through official

channels and concerned a matter of transcendent

professional interest to a prison official. He

was in a good position to form a judgment of the

reliability of this information, which went

directly to the issue of the ability of the

federal prison system to defang the murderers in

its custody.

 The defendant next objects under the Brady rule

to the government’s failure to turn over

"evidence" that inmates in the prison in which

the Aryan Brotherhood hits occurred believed that

the deaths of the inmates in question had other

causes. This evidence, limited as it was to

rumors that sweep prisons when any untoward event

occurs, was so valueless that its exclusion from

the trial could not be considered material.

United States v. Villarreal, 963 F.2d 725, 730

(5th Cir. 1992); Hopkinson v. Shillinger, 866

F.2d 1185, 1213, reheard en banc on other

grounds, 888 F.2d 1286 (10th Cir. 1989).

 We add as a detail that while the defendant was

of course entitled to counter the government’s

evidence that he would be a continued menace to

society while in prison, that being evidence

offered to establish an aggravating factor, 18

U.S.C. sec. 3593(c); cf. Gardner v. Florida, 430

U.S. 349, 362 (1977), he should not have been

permitted to present to the jury, as he was,

evidence of the existence of maximum-security

federal prisons decked out with control units, in

order to establish a mitigating factor. A

mitigating factor is a factor arguing against

sentencing this defendant to death; it is not an

argument against the death penalty in general.

See Penry v. Lynaugh, 492 U.S. 302, 328 (1989);

Eddings v. Oklahoma, 455 U.S. 104, 110 (1982);

Lockett v. Ohio, 438 U.S. 586, 604 n. 12 (1978)

(plurality opinion). The argument that life in

prison without parole, especially if it is spent

in the prison’s control unit and thus in an

approximation to solitary confinement,

sufficiently achieves the objectives aimed at by

the death penalty to make the latter otiose is an

argument addressed to legislatures, not to a

jury. This is apparent from the fact that the

list of mitigating factors in the federal deathpenalty statute does not include the harshness or

ugliness or (some would say) the immorality of

the death penalty, but only factors specific to

the defendant. See 18 U.S.C. sec. 3592(a), and in

particular subsection (a)(8) ("other factors in

the defendant’s background, record, or character
or any other circumstances of the offense that

mitigate against imposition of the death

sentence") (emphasis added).

 The argument is also illogical, as it amounts to

saying that because this defendant is so

dangerous, he does not deserve to be sentenced to

death, since his dangerousness will assure his

secure confinement. And its illogic shows that it

is really an argument against the death penalty,

period, since if this defendant should be spared

because he is unusually dangerous, surely less

dangerous murderers should not be executed

either, even though, because they are less

dangerous, they are less likely to be confined

securely.

 The last issue involves the verdict form. The

statute requires the jury to include as part of

the verdict special findings with respect to any

aggravating factors that it determines to exist.

But it also provides that "any member of the jury

who finds the existence of a mitigating factor

may consider such factor established." 18 U.S.C.

sec. 3593(d). Whether the juror must also be

permitted to include such a finding (that is, his

finding that a mitigating factor exists) in the

verdict, or in some separate written statement of

his own, may be doubted--has in fact been

rejected by the only two courts to consider the

issue, United States v. Paul, No. 98-3497, 2000

WL 822099, *13 n. 6 (8th Cir. June 27, 2000);

United States v. Hall, supra, 152 F.3d at 413--

but is conceded by the government on this appeal.

 The jury was given two separate verdict forms,

one for each of the two murders that the

defendant had committed. Each form lists more

than 20 possible mitigating factors, most of

which are equally applicable to both murders. For

example, both forms ask whether any jurors think

that "as a young child, Darryl Lamont Johnson

witnessed his father’s constant and serious

physical abuse of his mother." On one of the

forms, zero jurors thought this; on another, two

did. There are a number of similar discrepancies.

The defendant either did or did not witness his

father’s abuse of his mother; the answer has

nothing to do with which murder the jury was

considering.

 The general rule, however, the wisdom of which

this case substantiates, is that inconsistent

findings in a jury verdict do not invalidate the

verdict. E.g., United States v. Powell, 469 U.S.

57, 64-69 (1984); United States v. Akram, 152

F.3d 698, 701 (7th Cir. 1998); United States v.

Sims, 144 F.3d 1082 (7th Cir. 1998). A jury that

inconsistently convicts the defendant of one

offense and acquits him of another is as likely
to have erred in acquitting him of the one as in

convicting him of the other. "Inconsistent

verdicts therefore present a situation where

’error,’ in the sense that the jury has not

followed the court’s instructions, most certainly

has occurred, but it is unclear whose ox has been

gored. Given this uncertainty, and the fact that

the Government is precluded from challenging the

acquittal, it is hardly satisfactory to allow the

defendant to receive a new trial on the

conviction as a matter of course." United States

v. Powell, supra, 469 U.S. at 65. The principle

is applicable here, since the government cannot

appeal the jury’s refusal to impose the death

penalty. 18 U.S.C. sec. 3595(a).

 Of course, if the inconsistencies were such as

to indicate that the verdict was a product of

irrationality, it would have to be set aside. The

death penalty statute is explicit about this.

"Whenever the court of appeals finds that the

sentence of death was imposed under the influence

of passion, prejudice, or any other arbitrary

factor . . . the court shall remand the case for

reconsideration under section 3593 or imposition

of a sentence other than death." 18 U.S.C. sec.

3595(c)(2)(A) (emphasis added); United States v.

Paul, supra, 2000 WL 822099, *11; United States

v. Webster, supra, 162 F.3d at 354. But that is

not a necessary or even the most likely inference

in this case. It is more likely that several

jurors were of two minds about, say, the relation

between the defendant’s father and mother, and

their irresolution is reflected in their

inconsistent answers. But of course jurors

disagree among themselves; that is nothing new.

They are required to agree about their verdict,

not about every fact. What is important here is

that every juror who found more mitigating

factors present with respect to one of the

murders than with respect to the other

nevertheless voted that the aggravating factors

taken as a whole outweighed the mitigating

factors as a whole with regard to each murder. In

other words, there is no reason to suspect that

any juror was in doubt about the bottom line,

though he may have wavered with respect to just

how many mitigating factors were present. To put

it differently: if a juror couldn’t make up his

mind whether the defendant had proved 2

mitigating factors or 10 mitigating factors, but

was clear in his mind that even in the latter

event the aggravating factors outweighed them,

there would be no basis for thinking that he had

voted irrationally. Wainwright v. Lockhart, 80

F.3d 1226, 1231-32 (8th Cir. 1996).

 The verdict form was, however, confusing. It

invited inconsistent findings, by listing the

mitigating factors twice. For future reference in
a multiple-murder capital case, we suggest that

the jury be asked about the presence of any

mitigating factors that are common to both

murders on a separate form rather than on each

verdict form. This is assuming that it is proper

to make such inquiry of the jury, an issue we

leave open because the government waived any

objection to the procedure.

Affirmed.