Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING THE DEFENDANT’S MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL BENNETT, Chief Judge. TABLE OF CONTENTS I. SYNOPSIS AND SUMMARY OF DISPOSITION .949 II. INTRODUCTION. A. Background . 1. The 1993 case . 2. The 1996 case . 3. Discovery of the murder victims’ bodies. 4. The indictments in this case. a. Non-capital charges. b. Capital charges . 5. Significant pre-Mai rulings. 6. Honken’s Mal and conviction. a. Jury selection. b. The “merits phase”. c. The “penaltyphase”. 7. Post-Mai proceedings. a. The motion for judgment of acquittal or new Mai b. The motion to investigate juror misconduct. c. Oral arguments. OiO^c^ascncucncnCTiaicnaicncnaiaicn toooooo<ia>05^wwwioMKHH III. LEGAL ANALYSIS. A. Applicable Standards. 1. Judgment of acquittal. 2. New trial . C. Alleged Erroneous Pre-Mai Rulings. 1. Former jeopardy. a. The prior ruling. b. Arguments of the parties. c. Analysis of the renewed challenge. 2. Disqualification of the Mai judge. a. Factual background. b. Arguments of the parties. c. Applicable standards. d. Analysis. 3. Shackling of the defendant during Mai. -q-QOJOíCsooíOíOíOíOíOíOíQai -acocr>co-3^ioa>^^^coDO[soto a. The prior ruling.977 b. Arguments of the parties.978 c. Analgsis.979 4. Use of an “anonymous” jury.981 a. The prior ruling.981 b. Arguments of the parties.982 c. Analysis.983 D. Alleged Errors During Jury Selection.984 1. Factual background .984 a. Juror 902.984 b. Prospective Juror 538 . 986 c. Prospective Juror 813.987 2. Arguments of the parties.989 3. Analysis.990 a. Applicable standards.990 i. Jurors on whom the claim can be based.990 ii. The standard for an “impartial” juror.991 iii.The standard for erroneous rulings on motions to strike jurors.992 b. Application of the standards.993 i. Juror 902 . 993 ii. Prospective Juror 538 . 994 iii. Prospective Juror 813 .994 E. Alleged Errors During Trial.995 1. Hearsay and Conft-ontation Clause errors.996 a. Statements of Nicholson and DeGeus.996 b. Co-conspirator hearsay.997 i. Angela Johnson’s writings and maps .997 ii. The telephone call to Rick Held.998 c. Agent Mizell’s testimony.999 i. The evidence in question .999 ii. Arguments of the parties.999 iii. Analysis .1000 2. Restrictions on cross-examination of Timothy Cutkomp.1001 3. Denial of the motion for mistrial based on Scott Gahn’s testimony.... 1002 a. The testimony in question.1003 b. Aryuments of the parties.1003 c. Analysis.1004 4. Cumulative effect of erroneous evidentiary rulings.1005 5. Alleged errors in “penalty phase” jury instructions.1005 a. Arguments of the parties.1005 b. Analysis.1006 i. Improper weighing of mental state as an aggravating factor.1006 ii. Improper consideration of obstruction of justice as an aggravating factor.1007 F. Alleged Insufficiency Of The Evidence.1009 1. Non-capital offenses .1009 2. Capital offenses .1010 a. Alleyed insufficiency of the circumstantial case.1010 b. Alleged insufficiency of the evidence on specific Counts.1010 i. Insufficiency of the evidence on the “conspiracy murder” counts .1010 ii. Insufficiency of the evidence on the “CCE murder” counts .1012 G. Alleged Jury Misconduct Revealed By Johnson Juror 16.1014 1. Factual and procedural background.1014 2. Arguments of the parties.1014 3. Analysis.1015 II. Alleged Jury “Taint” Relatiny To Honken Juror 523.1017 1. Factual background .1017 a. Proceedings on October 21, 2004.1017 b. Proceedings on October 22, 2004.1020 c. Proceedings on October 25, 2004.1022 i. Instructions to trial jurors.1022 ii. Questioning of trial jurors.1023 iii. Instruction to alternate jurors.1024 iv. Questioning of alternate jurors.1025 v. Post-questioning proceedings .1025 d. Proceedings on December 16, 2004.1026 i. Questioning of officers and managers.1026 ii. Further questioning of Juror 523 .1029 2. Findings of fact .1032 a. Comments to Juror 523.1032 b. Comments repeated to other jurors.1034 3. Arguments of the parties.1035 a. Honken’s opening argument.1035 b. The government’s response.1037 c. Honken’s reply.1038 4. Analysis.1038 a. The need for an inquiry.1039 b. The permissible scope of the inquiry.1041 i. Rule 606(b).1041 ii. Tension between the Rule and the need for inquiry.1042 iii. Applicability of the Rule in pre-verdict inquines.1043 iv. Applicability of the rule to post-verdict inquiries to Juror 523 .1045 c. Standards for relief.1046 d. The effect of the extraneous contact.1046 i. Application of the “cure of prejudice” standard.1046 ii. Application of the “no Remmer presumption” standard_1049 iii. Applicability of the Rule in pre-verdict inquiries.1052 iv. Application of the “concealment of bias” standard.1054 I. Cumulative Effect Of Alleged Errors.1056 TV. CONCLUSION.1056 For the first time in more than forty years, an Iowa jury has recommended that a person convicted of a crime be sentenced to death. The jury’s exercise of its awesome sentencing responsibility was far from the last word in this case, however, because the defendant has now moved for judgment of acquittal, or, in the alternative, for a new trial. The court must, therefore, give the defendant’s conviction and the jury’s verdict for a death sentence the conscientious review required by the Constitution, the Federal Rules of Criminal Procedure, and basic concerns of fundamental fairness, where a federal jury has determined that Honken should receive the ultimate punishment under federal law: the death penalty. Before turning to the merits of Honk-en’s post-trial motions, a comment on the quality of counsels’ representation in this litigation is appropriate. As Justice Sutherland explained so eloquently some seventy years ago, The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). The prosecutors in this case, Assistant U.S. Attorney C.J. Williams, from Cedar Rapids, and Special Assistant U.S. Attorney Thomas Miller, from Des Moines, who was tapped from his usual duties as a Special Assistant Attorney General for the State of Iowa in charge of area prosecutions to serve as Mr. Williams’s co-counsel in this case and the companion case against Angela Johnson, precisely fulfilled Justice Sutherland’s conception of the role of a federal prosecutor. These two experienced and highly skilled prosecutors were exceptionally well-prepared and demonstrated unsurpassed skill in presenting the “merits” and “penalty” phases to the jury. Their zealousness in presenting the “merits” and “penalty” phases of the Honken trial was exceeded only by their professionalism and commitment to fairness. Honken likewise enjoyed legal representation meeting or exceeding the standards for defense counsel, as conceived by Justice Stevens: [T]he adversarial process protected by the Sixth Amendment requires that the accused have “counsel acting in the role of an advocate.” Anders v. California, 386 U.S. 738, 743, 87 S.Ct. 1396, 1399, 18 L.Ed.2d 493 (1967).... As Judge Wy-zanski has written: “While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.” United States ex rel. Williams v. Twomey, 510 F.2d 634, 640(CA7), cert. denied sub nom. Sielaff v. Williams, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975). United States v. Cronic, 466 U.S. 648, 656-57, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). By no means was Honken sacrificed unarmed to gladiators. Rather, his defense team consisted of two exceptionally experienced and highly regarded criminal defense lawyers from Iowa, Alfredo Parrish, from Des Moines, and Leon Spies, from Iowa City. As required by statute, these two Iowa attorneys were joined by “learned” counsel in death penalty cases, who in this case was Charlie Rogers, a nationally recognized death penalty specialist from Kansas City, Missouri. Like the prosecutors, the three defense lawyers were exceptionally well-prepared, incredibly zealous and skillful, and highly professional, ably fulfilling “the role of advocate[s].” Id. Honken, thus, not only had “the guiding hand of counsel at every step in the proceedings against him,” Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932), but “the ‘ample opportunity to meet the case of the prosecution’ to which [he was] entitled.” Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). I. SYNOPSIS AND SUMMARY OF DISPOSITION Defendant Dustin Lee Honken was charged with five counts of “conspiracy murder” and five counts of “CCE murder,” in violation of 21 U.S.C. § 848(e)(1)(A), for the 1993 murders of five people who were witnesses to Honken’s drug-trafficking, or other criminal conduct, or both. Two of the murder victims were children, ages six and ten, who like their mother had had the misfortune to be at home when Honken and his then-girlfriend, Angela Johnson, came looking for one of Honken’s drug dealers whom Honken suspected of cooperating with law enforcement officers. That drug dealer, his new female friend, and her two children were killed in one episode, and a second drug dealer whom Honken suspected had or might cooperate with law enforcement officers was killed in a separate episode more than three months later. In the “merits phase” of his trial, the jury found Honken guilty of all ten capital counts. In the “penalty phase,” the jury made a binding recommendation that Honken be sentenced to death for the murders of the two children, but recommended a life sentence for the murders of the three adults. In his Motion For A Judgment Of Acquittal, Or, In The Alternative, For A New Trial Pursuant To Fed.R.Crim.P. 29(c) And 33, Dustin Honken contends that his convictions on the capital and non-capital charges in this case are flawed on numerous grounds. The government resists each of Honken’s grounds for new trial or judgment of acquittal. The court will summarize very briefly here Honken’s contentions and the court’s disposition of them. First, Honken alleges errors in various pre-trial rulings, consisting of errors in denying his motion to dismiss the capital charges on former jeopardy grounds, failure to disclose grounds for disqualification of the undersigned trial judge, ordering that he be shackled during trial, and empaneling an “anonymous” jury. The court denied Honken’s pre-trial motion to dismiss the capital charges on the basis of former jeopardy in a published ruling, United States v. Honken, 271 F.Supp.2d 1097 (N.D.Iowa 2003), citing three alternative grounds, all of which led the court to the conclusion that the prior “conspiracy” charge was not, and was not intended by Congress to be, the “same offense” as either the “conspiracy murder” or “CCE murder” charges in the present indictment. In his post-trial motion, Honken has not convinced the court that its prior ruling was wrong and, indeed, has failed to address two of the alternative grounds for the court’s prior rejection of his former jeopardy argument. As to the other pre-trial errors that Honken asserts, the court finds no basis to retreat from its pre-trial rulings that both an “anonymous” jury and shackling of the defendant during trial were appropriate. Moreover, Honken has failed to show that either ruling actually prejudiced him in this case, where the jurors were given a neutral — and accurate, if not altogether complete — explanation for their “anonymity,” and the United States Marshal’s Service executed with great care the court’s instructions to keep jurors from becoming aware that Honken was shackled while at the counsel table or to allow them to see Honken in restraints while being moved in, to, or from the courtroom. Honken’s contention that he was prejudiced by the inference that he must be restrained because incarcerated witnesses were restrained is unpersuasive. The court also finds that no reasonable person could have had doubts about the court’s impartiality, simply because security measures that would have been imposed for any judge trying the case were imposed for the undersigned and his family and that pre-trial disclosure of those measures to Honken would have compromised their effectiveness. Honken also alleges errors in jury selection, consisting of erroneously denying defense challenges to certain jurors and erroneously granting the government’s challenges to other jurors. Focusing on only the three jurors as to whom a viable claim of this sort could be made, the court finds that the one challenged juror who actually sat on the jury demonstrated her ability to be fair and impartial and to fairly consider both penalties, life and death. As to the two prospective jurors as to whom Honken contends that the government’s challenges for cause should not have been granted, the court reiterates its conclusion that both could not be “death-qualified,” because they could not fairly consider imposition of the death penalty, where they would improperly require the government to meet a higher standard than proof beyond a reasonable doubt to impose the death sentence. Next, Honken alleges errors during trial, consisting of Confrontation Clause violations and admission of hearsay, restriction of cross-examination of Timothy Cutkomp, denial of a motion for mistrial concerning a witness’s testimony about Honken’s alleged cocaine use, and errors in certain “penalty phase” jury instructions. The court concludes that each of its evidentiary rulings was proper and that, even if the rulings could be shown to be an abuse of discretion, those rulings were nevertheless harmless, where the other evidence of Honken’s guilt was absolutely overwhelming, constituting not just proof beyond a reasonable doubt, but proof that was, in this court’s view, beyond all doubt. The centerpiece of Honken’s challenge to his conviction is his allegation of juror misconduct of Juror 523 and other jurors, arising from purported comments about Honken’s guilt and the penalty that he should suffer by Juror 523’s boss. Indeed, this is the issue to which Honken devoted far and away the most attention in his briefs in support of his motion for judgment of acquittal or new trial, and the issue he chose to give exclusive attention in his oral arguments on that motion. Notwithstanding Honken’s zealous argument of the matter, the court finds that only one comment was ever made by Juror 523’s boss, and that one was a humorous suggestion for things that she could have said to get out of jury service, which had no effect on Juror 523’s ability to be fair and impartial in this case. The court finds that Juror 523’s allegations of additional comments by her boss are not credible, and that the stress that she displayed was not the result of the comments or improper influences brought to bear upon her, but the result of being a juror in a capital case and the necessity of frequently switching gears from that activity to return to work when not in trial or deliberations. The court also finds that Juror 523’s report of purported comments from her boss to other jurors had no effect on the ability of other jurors to be fair and impartial during their “penalty phase” deliberations and did not compromise the “merits” verdict in this case. The court concludes that the situation was properly remedied by removing Juror 523 from deliberations in the “penalty phase,” replacing her with an alternate juror, of Honken’s choosing, and instructing the reconstituted jury to begin anew its “penalty phase” deliberations. Finally, Honken challenges the sufficiency of the evidence to convict him of either “conspiracy murder” or “CCE murder.” While Honken challenges both the soundness of the government’s circumstantial case and the sufficiency of the evidence to prove the existence of either the underlying conspiracy or the underlying CCE at the time of the murders, the court finds that the evidence on the issues identified was more than sufficient and, indeed, that the evidence of Honken’s guilt on the capital charges was absolutely overwhelming. In short, the court finds that a reasonable juror could have found the evidence sufficient to convict Honken; indeed, no reasonable juror could have found otherwise. Thus, judgment of acquittal is not required and, further or in the alternative, the interest of justice does not require a new trial in Honken’s case. Therefore, Honken’s motion for judgment of acquittal or new trial will be denied. The court’s much more detailed explication of the reasons for its conclusions follows. II. INTRODUCTION A. Background As with other rulings in this case, the background to defendant Dustin Lee Honken’s motion for judgment of acquittal or new trial begins with a survey of his prior prosecutions in this judicial district and a description of the charges against him in the present case. In addition, the court must now add a summary of the proceedings leading to Honken’s conviction and jury recommendation for death sentences on four of the ten capital charges against him. However, specific incidents or factual circumstances may require further amplification, in the legal analysis to follow, as they become relevant to issues that Honken raises in his post-trial motion. I. The 1993 case Honken was first prosecuted for drug-trafficking offenses in this district in 1993 in Case No. CR 93-3019 (“the 1993 case”). As the Eighth Circuit Court of Appeals explained, In April 1993, a grand jury in the Northern District of Iowa indicted [Honken] for conspiracy to distribute methamphetamine. After the disappearance of one or more prospective prosecution witnesses, the government dismissed the indictment. United States v. Honken, 184 F.3d 961, 963 (8th Cir.), cert. denied, 528 U.S. 1056, 120 S.Ct. 602, 145 L.Ed.2d 500 (1999). Thus, the first prosecution of Honken in this district did not lead to a conviction. The witnesses whose convenient disappearance ended the 1993 prosecution against Honken were Gregory Nicholson and Terry DeGeus, both of whom had been methamphetamine dealers for Honken. At the same time that Gregory Nicholson disappeared, Lori Duncan, a friend of Nicholson’s with whom Nicholson was then living, and Lori Duncan’s daughters, Kandi Duncan and Amber Duncan, ages 10 and 6, respectively, also disappeared. 2. The 1996 case Honken was again indicted on drug-trafficking charges on April 11,1996, this time with co-defendant Timothy Cutkomp, in Case No. CR 96-3004-MWB (“the 1996 case”). Count 1 of the Indictment in the 1996 case charged Honken and Cutkomp with conspiracy, between about 1993 and February 7, 1996, to distribute, manufacture, and attempt to manufacture 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine and 100 grams or more of pure methamphetamine. Indictment in Case No. CR 96-3004-MWB (N.D.Iowa). Count 2 of the original Indictment in the 1996 case charged Honken with possessing and aiding and abetting the possession of listed chemicals, in violation of 21 U.S.C. § 841(d) and 18 U.S.C. § 2, and Count 3 charged possession and aiding and abetting the possession of drug paraphernalia intending to use such paraphernalia to manufacture and attempt to manufacture methamphetamine and listed chemicals, in violation of 21 U.S.C. § 843(a)(6) and 18 U.S.C. § 2, respectively. Id., Counts 2 & 3. A superseding indictment filed later in the 1996 ease restated the first three charges and added a fourth charge of attempting to manufacture methamphetamine. See Superseding Indictment in Case No. CR 96-3004-MWB (N.D.Iowa). Eventually, in 1997, Honken pleaded guilty to the conspiracy charge and the charge of attempting to manufacture methamphetamine, ie., Counts 1 and 4, and the government dismissed Counts 2 and 3. See, e.g., Honken, 184 F.3d at 963. The court held an episodic sentencing hearing on December 15 and 16, 1997, and February 17, 18, and 24, 1998. Honken testified under oath on February 18 and 24, 1998. After the government’s appeal of the sentence originally imposed by the undersigned, see id., Honken was resen-tenced on January 25, 2000. Honken then unsuccessfully appealed his sentence. See United States v. Honken, 2 Fed.Appx. 611 (8th Cir.2001). Honken is now serving his sentence on Counts 1 and 4 in the 1996 case. 3. Discovery of the murder victims’ bodies In 2000, Honken’s some time girlfriend and mother of one of his children, Angela Johnson, was indicted for the killings of Nicholson, the Duncans, and DeGeus on non-capital charges of aiding and abetting the murder of witnesses in violation of 18 U.S.C. §§ 1512(a)(1)(A) and (C), 1512(a)(2)(A) or 1513(a)(1)(A) and (C), 1111, and 2; one count of aiding and abetting the solicitation of the murder of witnesses, in violation of 18 U.S.C. §§ 373(a)(1) and 2; and one count of conspiracy to interfere with witnesses, in violation of 18 U.S.C. § 371. While she was incarcerated pending trial on these charges, Johnson gave a jailhouse informant a map that showed where the five murder victims were buried after the informant convinced Johnson that he could get someone already serving a life sentence to confess to the killings, if she could give him information that would provide a credible basis for the false confession. The informant turned the map over to law enforcement officers. The map led law enforcement officers to two shallow graves containing the bodies of the five murder victims. 953 4. The indictments in this case Following discovery of the bodies, a Grand Jury handed down separate indictments against Honken and Johnson in 2001 charging each of them with ten capital offenses for the murders of Nicholson, the Duncans, and DeGeus. Honken was also charged with seven non-capital offenses that mirrored the seven non-capital offenses already brought against Johnson in the 2000 indictment. On August 23, 2002, a Grand Jury handed down a Superseding Indictment in this case that amended the capital charges against Honken in Counts 8 through 17. See Superseding Indictment (docket no. 46). The court will examine the charges in this case in more detail to put in context the discussion of Honken’s motion for judgment of acquittal or new trial. a. Non-capital charges Counts 1 through 5 of the Superseding Indictment charged “witness tampering.” More specifically, each count alleged that Honken “did willfully, deliberately, maliciously, and with premeditation and malice aforethought, unlawfully kill” one of five witnesses — Gregory Nicholson, Lori Duncan, Kandi Duncan, Amber Duncan, or Terry DeGeus — in violation of 18 U.S.C. § 1512(a)(1)(A) & (C); 1513(a)(1)(A) & (B) and 1111. The Superseding Indictment included, in support of Counts 1 through 5, allegations of “Findings under 18 U.S.C. § 3591 and 3592,” which the court finds it unnecessary to repeat here, because the government did not seek the death penalty against Honken on the “witness tampering” charges. Count 6 charged Honken with soliciting Dean Donaldson and Anthony Altimus to murder Timothy Cutkomp and Daniel Cobeen to prevent them from testifying in the 1996 case against Honken in violation of 18 U.S.C. § 373(a)(1). Count 7 charged Honken with conspiracy to tamper with witnesses and to solicit the murder of witnesses in violation of 18 U.S.C. § 371. Count 7 included fourteen numbered paragraphs of allegations of “Background to Overt Acts” and thirty numbered paragraphs of allegations of “Overt Acts” in furtherance of the conspiracy, which the court will not quote here. b. Capital charges Honken was also charged in Counts 8 through 12 of the Superseding Indictment in this ease with five counts of murder while engaging in a drug-trafficking conspiracy (“conspiracy murder”), in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. These Counts each charged the “conspiracy murder” of one of five people— Gregory Nicholson, Lori Duncan, Kandi Duncan, Amber Duncan, or Terry De-Geus — as follows: On or about July 25, 1993 [November 5, 1993, as to DeGeus], in the Northern District of Iowa, DUSTIN LEE HONK-EN, while knowingly engaging in an offense punishable under Title 21, United States Code, Sections 846 and 841(b)(1)(A), that is between 1992 and 1998 DUSTIN LEE HONKEN did knowingly and unlawfully conspired [sic] to: 1) manufacture 100 grams or more of pure methamphetamine and 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine and 2) distribute 100 grams or more of pure methamphetamine and 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine, intentionally killed and counseled, commanded, induced, procured, and caused and aided and abetted the intentional killing of [the named individual], and such killing resulted. All in violation of Title 21, United States Code, Section 848(e)(1)(A) and Title 18, United States Code, Section 2. Superseding Indictment, Counts 8 through 12. Counts 13 through 17 of the Superseding Indictment in this case charged Honk-en with the murder of the same five individuals, respectively, while engaging in or working in furtherance of a continuing criminal enterprise (“CCE murder”), also in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2, as follows: On or about July 25, 1993 [November 5, 1993, as to DeGeus], in the Northern District of Iowa, DUSTIN LEE HONK-EN, while engaging in and working in furtherance of a continuing criminal enterprise in violation of Title 21, United States Code, Section 848(c), intentionally killed and counseled, commanded, induced, procured, and caused and aided and abetted the intentional killing of [the named individual], and such killing resulted. The continuing criminal enterprise DUSTIN LEE HONKEN engaged in and worked in furtherance of was undertaken by DUSTIN LEE HONKEN in concert with five or more other persons including, but not limited to, Timothy Cutkomp, Gregory Nicholson, Terry De-Geus, Angela Jane Johnson, and Jeffery Honken. In the organization, DUSTIN LEE HONKEN occupied a position of organizer, supervisor or other position of management. The criminal enterprise involved the commission of a continuing series of narcotics violations under Title 21, United States Code, Section 801 et. [sic] seq. occurring between 1992 and 2000, specifically: [18 numbered paragraphs omitted]. From this continuing criminal enterprise, DUSTIN HONKEN and others derived substantial income and resources. All in violation of Title 21, United States Code, Section 848(e)(1)(A) and Title 18, United States Code, Section 2. Superseding Indictment, Counts 13 through 17. On June 10, 2003, the government filed its Notice Of Intent To Seek The Death Penalty Under 21 U.S.C. § 848 (docket no. 120), thereby giving notice of the government’s intent to seek the death penalty on the “conspiracy murder” and “CCE murder” offenses in Counts 8 through 17. On July 21, 2003, in a ruling that Honken challenges post-trial, this court denied Honken’s motion to dismiss Counts 8 through 17 on the basis of “former jeopardy” in light of his prior conviction in the 1996 case. See United States v. Honken, 271 F.Supp.2d 1097 (N.D.Iowa 2003). Therefore, this matter proceeded to trial on August 18, 2004, on all seventeen of the charges in the Superseding Indictment. 5. Significant pre-trial rulings Prior to trial, this court entered a number of rulings on evidentiary and other issues, which the court has only recently submitted for publication. Because Honken challenges some of those pre-trial rulings, the court will summarize the salient points of those rulings in the pertinent sections of its legal analysis, below. Nevertheless, a synopsis of those rulings is appropriate here. On January 29, 2004, the court filed a memorandum opinion and order granting the government’s motion for an “anonymous” jury (docket no. 201), United States v. Honken, 378 F.Supp.2d 880 (N.D.Iowa 2004). More specifically, pursuant to the court’s ruling, the jurors in this case were “anonymous” to the extent that their names, addresses, and places of employment, and the names of spouses and their places of employment, were not disclosed to the parties, their counsel, or the public, either before or after selection of the jury panel. However, pursuant to this ruling, each juror’s community of residence and the “nature” of his or her employment, and the “nature” of his or her spouse’s employment, were disclosed to the parties, their counsel, and the public. By order dated May 14, 2004 (docket no. 249), United States v. Honken, 378 F.Supp.2d 925 (N.D.Iowa 2004), the court denied Honk-en’s motion to reconsider this ruling. Honken expressly challenges the original ruling and the ruling on the motion to reconsider on the “anonymous jury” issue in his post-trial motion for judgment of acquittal or new trial. On June 7, 2004, the court entered a ruling on the government’s pre-trial motions (docket no. 272), United States v. Honken, 378 F.Supp.2d 928 (N.D.Iowa 2004). That ruling granted the government’s motion to admit evidence of Honk-en’s admissions during his guilty plea, sentencing, and conviction of drug charges in the 1996 case; granted the government’s motion to admit the maps showing the locations of the graves of the murder victims that Angela Johnson had given to a jailhouse informant in 2000; granted the government’s motion to admit certain audio recordings of conversations between Honken and Gregory Nicholson and between Honken and Timothy Cutkomp; and reserved for trial the question of the admissibility, for demonstrative purposes, of a replica firearm. The replica firearm was later admitted at trial after the court determined that sufficient evidence had been presented to show that Honken possessed a weapon matching the description of the replica firearm and that such a weapon could reasonably have been the murder weapon. Honken challenges some of these rulings post-trial. The court entered a ruling on a “second series” of pre-trial motions by the parties on July 16, 2004 (docket no. 323), United States v. Honken, 378 F.Supp.2d 970 (N.D.Iowa 2004). In that ruling, the court granted the government’s motion to exclude evidence of witness Timothy Cut-komp’s incidents of indecent exposure to the extent that the parties, counsel, and witnesses were allowed to make reference to Cutkomp’s “misdemeanor conviction” and “acts constituting misdemeanor violations of the law” that caused Cutkomp to see a psychiatrist or that Cutkomp may have failed to disclose fully to law enforcement officers, but they were not allowed to refer to the incidents as incidents of “indecent exposure.” The court also granted the government’s motion to admit certain hearsay statements by murder victim Terry DeGeus pursuant to Rule 803(3) (then existing mental, emotional, or physical condition) or conditionally pursuant to Rule 804(b)(6) (forfeiture by wrongdoing), and likewise granted the government’s motion to admit certain hearsay statements by murder victim Gregory Nicholson conditionally pursuant to Rule 804(b)(6). The court also granted the government’s motion to bar evidence or discussion concerning certain aspects of the death penalty, but with certain specific exceptions noted in the ruling. In the same ruling, the court also granted in part and denied in part Honken’s motion to exclude certain evidence, which is not pertinent to his present motion for judgment of acquittal or new trial; denied the government’s motion to exclude evidence from one of Honk-en’s experts, subject to conditions the court had set during oral arguments; and denied the government’s motion to exclude evidence from Honken’s mitigation specialist. Honken also challenges some of these rulings post-trial. On July 21, 2004, the court granted the government’s motion to have Honken wear shackles at trial (docket no. 328), United States v. Honken, 378 F.Supp.2d 1010 (N.D.Iowa 2004). Honken also expressly challenges this ruling post-trial. Therefore, the court will summarize the content and basis for that ruling in the pertinent section of its legal analysis below. Finally, on September 1, 2004, during the course of jury selection, the court entered a ruling (docket no. 432), United States v. Honken, 378 F.Supp.2d 1040 (N.D.Iowa 2004), addressing whether or not the jury would be instructed that it could consider any “residual” or “lingering” doubts as to Honken’s guilt or involvement in the charged offenses as a mitigating factor during the “penalty phase,” if any. Honken had raised this issue during voir dire of various prospective jurors. The court concluded that it would permit Honken to raise the issue of “residual doubt” in the presentation of the “penalty phase,” if any, and that it would include a “residual doubt” instruction in its “penalty phase” instructions to the jury. The court did ultimately include such an instruction in the final “penalty phase” jury instructions. 6. Honken’s trial and conviction a. Jury selection Well in advance of trial, the court authorized the use of an extensive juror questionnaire to obtain basic biographical information about each prospective juror, as well as more detailed information about the juror’s views on trial-related issues, such as the death penalty. The court also authorized Honken’s defense team to hire a jury consultant, who participated in the drafting of the juror questionnaire. The questionnaire was distributed to one thousand prospective jurors. If a questionnaire was returned as undeliverable, Clerk’s Office personnel attempted to determine whether the prospective juror had moved or died and, if possible, would resend the questionnaire to the prospective juror. Based on directions from the court, the Clerk’s Office excused jurors who could not be located. Prior to trial, counsel for the parties met to review the hundreds of responses to the juror questionnaires that had been returned. The parties then agreed to excuse over two hundred prospective jurors for hardship or inability to qualify to serve on the jury in this death-penalty case. The remaining prospective jurors were randomly sorted into panels of fifteen and each juror was notified of the day on which his or her panel was to appear for preliminary jury selection. After panel assignment notices were sent out, the court excused several additional jurors for hardship based on renewed requests for excuses from service. Jury selection began in Honken’s trial on August 18, 2004, with the appearance of the first panel of approximately fifteen prospective jurors for group and individual voir dire. Each day, with each new panel, by agreement with the parties, the court initiated the jury selection process. However, also by prior agreement and pursuant to certain rulings, the lawyers on both sides were provided considerable latitude in questioning the panel as a whole and then questioning each individual prospective juror. In the course of each day of jury selection, prospective jurors were excused for hardship or on challenges for cause. Prospective jurors not so excused were “qualified” for the final juror pool. Once seventy-five prospective jurors were “qualified” in this manner, the “qualified pool” was notified to appear for final jury selection. A sufficient pool of “qualified” prospective jurors was eventually obtained after twelve daily panels were interviewed. The “qualified pool” of seventy-five prospective jurors appeared on September 8, 2004, and after further voir dire, three prospective jurors were excused for hardship and one was stricken for cause. The parties then exercised their peremptory challenges, and a panel of twelve trial jurors and six alternates was seated. The jurors selected were not made aware at this time whether they were trial jurors or alternates. The court then read its preliminary “merits phase” jury instructions. After the reading of the jury instructions, one juror, a local Sioux City lawyer, notified the court that she had just realized that she had read various rulings in the companion case against Angela Johnson, and the court and the parties agreed to strike that juror for cause. Therefore, trial continued with a total of seventeen jurors, five of whom were alternates. b. The “merits phase” The “merits phase” of Honken’s jury trial began on September 9, 2004, with opening arguments and the start of the presentation of evidence in the government’s case-in-chief. Prior to or in the course of trial, the government narrowed some of the charges to conform to proof. Specifically, as to the non-capital charge of solicitation of murder in Count 6, the government withdrew its allegation that Honken solicited the murder of Daniel Co-been, and Count 6 went to the jury only on solicitation of the murder of Timothy Cutkomp. As to the capital charges of “CCE murder” in Counts 13 through 17, the government withdrew the “working in furtherance of the CCE” alternative, and submitted only the “engaging in the CCE” alternative. Thus, the government was required to prove that Honken was actually guilty of the underlying CCE offense and, indeed, that he was the “organizer, supervisor, or manager” of the CCE. The government also narrowed from eighteen to thirteen the field of alleged violations constituting the series of three or more related felony violations required for the underlying CCE offense. During the “merits phase,” the jury heard the testimony of sixty-five witnesses, eleven of whom were called by Honken, and the court admitted nearly four hundred exhibits, six of which were offered by Honken. The court also permitted the government to use nineteen demonstrative exhibits. Trial was ordinarily held four days per week, with Fridays off. On October 7, 2004, the fifteenth trial day, the presentation of “merits phase” evidence concluded, and the court read the jury most of the final “merits phase” jury instructions. On October 11, 2004, after closing arguments, the court read the remaining jury instructions on deliberations, and dismissed alternate jurors until required for any “penalty phase,” then submitted the “merits phase” of Honken’s trial to the jury. The jury returned its “merits phase” verdict on October 14, 2004, after approximately two-and-one-half days of deliberations. The jury found Honken guilty on all seventeen counts against him. As to the capital charges of “conspiracy murder” in Counts 8 through 12, the jury found that the objectives of the underlying conspiracy were the manufacture and distribution of 100 grams or more of actual (pure) methamphetamine. The jury also found that Honken intentionally killed, rather than aided and abetted the killing, of each of the five murder victims. As to the capital charges of “CCE murder” in Counts 13 through 17, the jury found that the underlying CCE involved all thirteen of the offenses allegedly constituting the series of three or more violations, and that Honken intentionally killed, rather than aided and abetted the killing, of each of the five murder victims. The jurors were not required to respond to any query regarding the members of the CCE, because the prosecution only alleged that five persons, in addition to Honken, the minimum required for a CCE violation, see 21 U.S.C. § 848(c), were members of the CCE. c. The “penaltyphase” The “penalty phase” of Honken’s trial began after a brief hiatus on October 18, 2004, with the reading of preliminary “penalty phase” jury instructions, opening statements, and the presentation of evidence by both the government and the defense. During the “penalty phase,” the jury heard the testimony of twenty witnesses, nine of whom were called by Honken, and the court admitted thirteen government exhibits and sixty-six defense exhibits. The defense’s “penalty phase” evidence continued through the morning of October 19, 2004, and most of the day on October 20, 2004. The government’s rebuttal evidence occupied the late afternoon on October 20, 2004. The court read the final “penalty phase” jury instructions to the jury on October 21, 2004, and the parties made their closing arguments. The “penalty phase” of Honken’s trial was submitted to the jury before noon on October 21, 2004. Although the alternate jurors heard all of the “penalty phase” evidence, before the trial jurors began their “penalty phase” deliberations the alternates were again excused pending possible recall, if needed. Without objection from the parties, the court allowed the jurors to determine their own schedule for deliberations, including whether or not to deliberate on Fridays. The jurors chose to end their deliberations early on Thursday, October 21, 2004, and informed the court that they had decided not to deliberate on Friday, October 22, 2004. However, before the jurors were escorted back to their dispersal site, one of the jurors, Juror 523, asked a Deputy Clerk of Court for an excuse from work for the remainder of the day and the following day, because she alleged that her boss had been making inappropriate comments to her about the trial. The Deputy Clerk brought the matter to the court’s attention, and the court, in turn, informed the parties. A hearing on the matter, including questioning of Juror 523, occupied most of the afternoon on October 21, 2004. A further hearing was held on October 22, 2004, involving further questioning of Juror 523. All of the jurors, trial jurors and alternates, were recalled on October 25, 2004. Before they were allowed to begin any deliberations, all of the jurors, trial jurors and alternates, were questioned individually in court concerning what, if anything, they had heard from Juror 523 about her boss’s comments. Juror 523 was excused and the defendant was given a choice of continuing the “penalty phase” deliberations with eleven jurors or seating one of the alternate jurors. Honken chose the latter option, so Juror 523 was replaced with an alternate juror of Honken’s choosing and to whom the government had no objection, and the jury was instructed to begin its deliberations anew. The court will return to the circumstances surrounding this incident in more detail below, as this incident is the centerpiece of Honken’s motion for a new trial. The reconstituted jury returned its “penalty phase” verdict on October 27, 2004. The verdict form required the jurors to state their verdict in five “steps.” In Step 1, for each of the eight capital counts, the jury found as an “eligibility aggravating factor,” that Honken intentionally killed the victim identified in that count. See 21 U.S.C. § 848(n)(l)(A). In Step 2, the jury found that the prosecution had proved all of “statutory aggravating factors” alleged, with the exception that the jury did not find that Honken committed the killings of the children, Kandi and Amber Duncan, after substantial planning and premeditation. In Step 3, the jury found that the prosecution had proved all of the “non-statutory aggravating factors” upon which it had relied. In Step 4, at least one juror also found each of the “mitigating factors” asserted by Honken, with the exception that not a single juror found any “residual or lingering doubts as to Dustin Honken’s guilt or innocence or his role in the offenses, even though those doubts did not rise to the level of ‘reasonable doubts’ during the ‘merits phase’ of the trial.” See Verdict Form, Step 4. The jurors did not indicate that they found any additional “mitigating factors” not expressly argued by defense counsel. Finally, in Step 5, after weighing all of the pertinent factors, the jury found that a sentence of life imprisonment without possibility of release should be imposed upon Honken for the killings of Gregory Nicholson, Lori Duncan, and Terry DeGeus, but that a sentence of death should be imposed for the killings of Kandi and Amber Duncan. 7. Post-trial proceedings a. The motion for judgment of acquittal or new trial On October 28, 2004, the court entered an order (docket no. 550) extending Honk-en’s deadline for any post-trial motions to and including November 17, 2004. On November 4, 2004, the court entered another order (docket no. 563) setting an evidentia-ry hearing on post-trial motions for December 16, 2004. On November 17, 2004, Honken filed his Motion For A Judgment Of Acquittal, Or, In The Alternative, For A New Trial Pursuant To Fed.R.Crim.P. 29(c) And 33 (docket no. 578), which is now before the court. Honken was not, however, required to file a brief with his motion until after the evidentiary hearing scheduled for December 16, 2004, and the government was, likewise, granted an extension of time to resist Honken’s motion until after Honken filed his brief. The court held the post-trial evidentiary hearing as scheduled on December 16, 2004. The focus of the hearing was the alleged jury-tampering issue involving Juror 523’s report of inappropriate comments about the trial by her boss. At the hearing, the government called six persons identified as officers or managers of the company at which Juror 523 was employed. Defendant Honken called Juror 523 and Duane Walhof, the Supervisory Deputy United States Marshal for the Sioux City Office of the United States Marshal’s Service. Another officer or manager of the company at which Juror 523 was employed was subsequently deposed by the parties. Following the hearing, the court granted Honken further extensions of time to file his brief in support of his post-trial motions. Honken ultimately filed his brief on March 14, 2005 (docket no. 634). The government filed its resistance on March 25, 2005 (docket no. 642), and, after several extensions of time to do so, Honken filed a reply brief on May 25, 2005 (docket no. 664). By order dated June 7, 2005 (docket no. 670), the court set telephonic oral arguments on Honken’s motion for new trial for June 22, 2005, after carefully balancing Honken’s rights with security and cost concerns, and determining that telephonic oral arguments would be adequate to protect Honken’s rights and were appropriate under the circumstances. However, when Honken moved to continue the oral arguments on his motion for judgment or new trial owing to conflicts with counsels’ schedules, the court canceled the oral arguments. The oral arguments were eventually heard on July 12, 2004. b. The motion to investigate juror misconduct In a separate, unresisted motion, filed May 2, 2005, Honken sought the juror questionnaire of a potential juror in the companion case of United States v. John son, No. CR 01-3046-MWB (N.D.Iowa). See Honken’s Unresisted Application To Obtain Juror Questionnaire Of Potential [Johnson] Juror # 16 (docket no. 655). The motion was prompted by a letter dated April 21, 2005, from the court to counsel for both parties in this case advising them that a comment in a questionnaire of Prospective Juror 16 in United States v. Johnson had raised some concerns about a juror in Honken’s case. In an order dated May 3, 2005 (docket no. 656), the court found that, notwithstanding the government’s lack of objection, Honken’s motion was deficient to obtain the relief he sought, because the application was not accompanied by a brief and failed to identify the applicable standards for obtaining the information in question or making further inquiry or investigation into the incident in question. Therefore, the court gave defendant Honken to and including Tuesday, May 17, 2005, to submit a brief in support of his application that, at a minimum, cited and applied the standards applicable to his request to obtain the juror questionnaire at issue or otherwise to make further inquiry or investigation into the incident. The court also gave the government to and including Tuesday, May 24, 2005, to file any responsive brief. A week later, on May 10, 2005, the court entered another order (docket no. 659), explaining that the court’s own preliminary research had brought to the court’s attention the recent decision of the Eighth Circuit Court of Appeals in United States v. Gianakos, 404 F.3d 1065 (8th Cir.2005). In its May 10, 2005, order, the court stated its opinion that it was likely that the decision in Gianakos foreclosed further inquiry and investigation regarding the incident underlying defendant Honken’s motion for the juror questionnaire of Prospective Johnson Juror 16, and, moreover, that the decision in Gianakos was likely dispositive of any issue of alleged juror misconduct to which that mbtion related. Consequently, the court directed that, in his brief due May 17, 2005, concerning his request for the juror questionnaire of Prospective Johnson Juror 16, Honken was to consider the impact of the Gianakos decision. The court likewise directed the government to consider the impact of the Gianakos decision in its responsive brief, if any. Honken did not file any timely brief on or before May 17, 2005, in support of his request for the juror questionnaire for Prospective Johnson Juror 16, as required by the court’s order of May 10, 2005, nor did he file any timely request for an extension of time to do so. After allowing an additional month to elapse, the court entered an order dated June 16, 2005 (docket no. 675), in which the court denied Honk-en’s May 2, 2005, Unresisted Application To Obtain Juror Questionnaire Of Potential [Johnson] Juror # 16 (docket no. 655) on three alternative grounds: waiver of the issue, failure to comply with a court order to file a brief in support of the motion, and failure on the merits. In response to that order, on June 22, 2005, Honken filed a Motion For Five Additional Days To File A Brief In Support Of His Motion To Reconsider Denial Of Juror Questionnaire (docket no. 676). While not convinced that Honken had shown good cause or excusable neglect for his failure to file a timely response to the court’s order to file a brief in support of his original motion requesting the juror questionnaire of Prospective Johnson Juror 16, in an abundance of caution, the court granted Honken leave to file a motion to reconsider the June 16, 2005, ruling. The court cautioned Honken that he must now address not only the merits of his original motion, but also address whether adequate grounds existed to reconsider the denial of that motion. On June 28, 2004, Honken filed both a brief in support of his motion to obtain the juror questionnaire of Prospective Johnson Juror 16 and a brief in support of his motion to reconsider the order denying his original motion (docket nos. 685-1 and 685-2). The government filed a response to the motion to obtain the juror questionnaire on June 29, 2005 (docket no. 687). Therefore, the issue of whether or not Honken may obtain the juror questionnaire of Prospective Johnson Juror 16 is now fully submitted. c. Oral arguments At the telephonic oral arguments on Honken’s post-trial motion for judgment of acquittal or new trial, the United States was represented by C.J. Williams, Assistant United States Attorney, from Cedar Rapids, Iowa, who argued the government’s position, and Thomas Henry Miller, Assistant Iowa Attorney General, from Des Moines, Iowa. Defendant Dustin Lee Honken participated by telephone and was represented by Alfredo G. Parrish of Parrish, Kruidenier, Moss, Dunn, Montgomery, Boles & Gribble, L.L.P., in Des Moines, Iowa; Leon F. Spies of Mellon & Spies in Iowa City, Iowa; and Charles Rogers of Wyrsch, Hobbs & Mirakian, P.C., in Kansas City, Missouri. The court initiated the teleconference from the first floor courtroom in Sioux City, Iowa, so that members of the press and public could audit the arguments. However, no one appeared in person to audit the arguments, although certain members of the press who had requested prior permission to do so were permitted to audit the oral arguments by telephone. At the conclusion of the oral arguments, Honken requested leave to file a supplemental brief, because he had not been able to consult privately with counsel during the telephonic arguments. The court granted that request, and Honken filed his supplemental reply brief on July 20, 2005 (docket no. 690). The prosecution had indicated at the oral arguments that it did not need the opportunity to respond to any supplemental reply brief that Honken might file. Therefore, Honken’s post-trial motion for judgment of acquittal or new trial is now fully submitted. III. LEGAL ANALYSIS (Including Essential Findings Of Fact) A. Applicable Standards The court will consider each of Honken’s challenges to his conviction in turn. However, because Honken has not always clearly articulated whether the alleged “errors” he asserts should earn him a judgment of acquittal or a new trial, the court must first determine on which grounds Honken seeks a judgment of acquittal and on which he seeks a new trial. That question is resolved by examining the standards applicable to each kind of challenge to his conviction. 1. Judgment of acquittal Rule 29(a) of the Federal Rules of Criminal Procedure provides, in pertinent part, that “the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R.Ceim.P. 29(a) (emphasis added). While Rule 29(a) expressly provides for such a motion before the case is submitted to the jury, see id., Rule 29(c) provides, in pertinent part, that “[a] defendant may move for judgment of acquittal, or renew such a motion ... within any ... time the court sets during the 7-day period” after a guilty verdict or discharge of the jury. Fed.R.CRImP. 29(c)(1). Honken has filed such a timely motion for judgment of acquittal within the extended time the court authorized. As the Eighth Circuit Court of Appeals has explained, “A motion for a judgment of acquittal should be denied where the evidence, viewed in the light most favorable to the government, is such that a reasonable jury could have found each of the essential elements of the crime beyond a reasonable doubt.” United States v. Moyer, 182 F.3d 1018, 1021 (8th Cir.1999) (emphasis added) (citing United States v. Hood, 51 F.3d 128, 129 (8th Cir.1995), and United States v. Huntsman, 959 F.2d 1429, 1436-37 (8th Cir.1992), cert. denied, 506 U.S. 870, 113 S.Ct. 201, 121 L.Ed.2d 143 (1992)), cert. denied, 530 U.S. 1203, 120 S.Ct. 2196, 147 L.Ed.2d 232 (2000). To put it another way, “ ‘[a] motion for judgment of acquittal should only be granted where the evidence, viewed in the light most favorable to the government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any essential elements of the crime charged.’ ” United States v. Pardue, 983 F.2d 843, 847 (8th Cir.1993) (quoting United States v. Mundt, 846 F.2d 1157, 1158 (8th Cir.1988), with citation omitted and emphasis added), cert. denied, 509 U.S. 925, 113 S.Ct. 3043, 125 L.Ed.2d 728 (1993). Thus, in either the trial court or the appellate court, the standard is the same: [T]he test is whether “a reasonable fact finder could have found guilt beyond a reasonable doubt.” United States v. Garrett, 948 F.2d 474, 476 (8th Cir.1991) (citation omitted). Under this standard, the district court has “very limited latitude.” United States v. Jewell, 893 F.2d 193, 194 (8th Cir.1990). In deciding a motion for judgment of acquittal, the court can neither weigh the evidence nor assess the credibility of the witnesses. Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978). Pardue, 983 F.2d at 847. Honken’s only challenges couched in terms of sufficiency of the evidence are his challenges to the sufficiency of the evidence supporting his convictions for “conspiracy murder” and “CCE murder”; thus, Honken plainly seeks judgment of acquittal on these charges. See Fed.R.CRIm.P. 29(a) (a judgment of acquittal must be granted if the evidence is insufficient to sustain the conviction). Similarly, his reassertion of “former jeopardy” as barring his prosecution on the capital charges is also an argument that there is no legal and evidentiary distinction between the present capital charges and his former “conspiracy” conviction to satisfy the Double Jeopardy Clause. Therefore, the court also construes the “former jeopardy” argument to be an argument for judgment of acquittal on the capital offenses. Unless the court indicates otherwise, however, the court will assume that the relief that Honken seeks on all of his other challenges is a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. 2. New trial Rule 33 of the Federal Rules of Criminal Procedure provides that, “[ujpon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R.Cmm.P. 33(a) (emphasis added). Although a new trial may be based on newly discovered evidence, see Fed. R.Crim. P. 33(b)(1) (stating the time for filing of a motion for new trial based on “newly discovered evidence”); see also United States v. Gianakos, 404 F.3d 1065, 1079 (8th Cir.2005) (stating showings required to obtain a new trial based on newly discovered evidence), that is not the only ground. See, e.g., Fed.R.Ceim.P. 33(b)(2) (stating the time to file a motion for new trial “grounded on any reason other than newly discovered evidence”). “The granting of a new trial under Rule 33 is a remedy to be used only ‘sparingly and with caution.’ ” United States v. Dodd, 391 F.3d 930, 934 (8th Cir.2004) (quoting United States v. Campos, 306 F.3d 577, 579 (8th Cir.2002), in turn quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980)). Somewhat more specifically, The Rule specifies that the remedy should be granted only where “the interest of justice so requires.” Fed.R.Crim.P. 33. The decision to grant a Rule 33 motion is within the sound discretion of the District Court, and we will reverse only for an abuse of that discretion. Campos, 306 F.3d at 579-80. The District Court’s discretion is broad in that it may “weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict.” Id. at 579. This discretion is abused, however, if the District Court fails to consider a factor that should have been given significant weight, considers and gives significant weight to an improper or irrelevant factor, or commits a clear error of judgment in considering and weighing only proper factors. Id. at 580. Dodd, 391 F.3d at 934. “Unless the district court ultimately determines that a miscarriage of justice tvill occur, the jury’s verdict must be allowed to stand.” Campos, 306 F.3d at 579 (emphasis added) (citing United States v. Lacey, 219 F.3d 779, 783 (8th Cir.2000)); accord Ortega v. United States, 270 F.3d 540, 547 (8th Cir.2001) (“A district court may grant a new trial under Rule 33 ‘ “only if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.” ’ ”) (quoting Lacey, 219 F.3d at 783, in turn quoting United States v. Brown, 956 F.2d 782, 786 (8th Cir.1992)). With the exception of his challenge to the sufficiency of the evidence of “conspiracy murder” and “CCE murder,” based on either trial evidence or “former jeopardy” grounds, Honken’s post-trial