Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING THE DEFENDANT’S MOTIONS IN ARREST OF JUDGMENT AND FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL BENNETT, Chief Judge. TABLE OF CONTENTS I. OVERVIEW...............................................................736 II. INTRODUCTION..........................................................741 A. Background...........................................................741 1. Prior prosecutions ofHonken......................................741 2. The disappearance of the witnesses.................................742 3. Discovery of the murder victims’ bodies.............................742 4. The indictments in this case.......................................743 5. Honken’s trial....................................................744 B. Signifícant Rulings Before And During Johnson’s Trial...................745 C. Johnson’s Trial........................................................748 1. The charges at trial...............................................748 2. Jury selection....................................................748 3. The “merits phase”...............................................751 4. The “eligibilityphase”............................................752 5. The “penalty phase”..............................................753 D. Post-Trial Proceedings................................................755 III. THE MOTION IN ARREST OF JUDGMENT.................................757 A. Grounds For The Motion...............................................757 B. Timeliness............................................................757 1. Arguments of the parties ..........................................757 2. Analysis.........................................................757 C. Failure To Charge A “Substantive Connection”..........................759 1. Arguments of the parties ..........................................759 2. Analysis.........................................................759 D. Failure To Charge A Cognizable “Aiding And Abetting” Offense...........761 1. Arguments of the parties ..........................................761 2.Analysis..................................................... 761 IV. THE MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL....... 763 A. Waiver........................................................... 763 B. Applicable Standards.............................................. 765 1. Judgment of acquittal......................................... 765 2. New trial .................................................... 766 C. Allegedly Erroneous Pretrial Rulings............................... 766 1. Ground No. 5: Denial of motions for change of venue............. 767 a. Background.............................................. 767 b. Arguments of the parties................................... 768 c. Analysis ................................................. 768 2. Ground No. 11: Failure to strike and submission to the jury of legally insufficient allegations in Counts 6 through 10......... 770 a. Background.............................................. 770 b. Arguments of the parties................................... 770 c. Analysis ................................................. 771 3. Ground No. 21: Failure to strike the death penalty after the indictment was amended during jury selection................ 772 a. Background.............................................. 772 b. Arguments of the parties................................... 772 c. Analysis ................................................. 773 D. Alleged Errors During Jury Selection ............................... 774 1. Ground No. 7: Rule 24 violates equal protection ................. 774 a. Background.............................................. 774 b. Arguments of the parties................................... 775 c. Analysis ......................... ....................... 775 2. Ground No. 6: Failure to grant Johnson additional peremptory challenges ................................................. 776 a. Background.............................................. 776 b. Arguments of the parties................................... 777 c. Analysis ................................................. 777 3. Ground No. 8: Challenges for.cause erroneously granted.......... 779 a. Background.............................................. 779 i. Prospective Juror 533................................. 779 ii. Prospective Juror 458................................. 780 iii. Prospective Juror 769................................. 780 b. Arguments of the parties................................... 781 c. Analysis ................................................. 781 i. The standard for an “impartial” juror.................. 781 ii. The standard for erroneous rulings on motions to strike jurors............................................. 782 iii. Application of the standards........................... 783 4. Ground No. 9: Challenges for cause erroneously denied........... 785 a. Jurors on whom the claim can be based..................... 785 b. Background.............................................. 787 i. Prospective Juror 600................................. .787 ii. Prospective Juror 797................................. 787 c. Arguments of the parties................................... 788 d. Analysis ................................................. 789 E. Alleged Errors During The “Merits Phase”.......................... 789 1. Ground No. 1: Insufficiency of the “merits phase” evidence....... 790 a. Arguments of the parties................................... 790 b. Analysis ................................................. 793 i. Insufficiency of the evidence on the “conspiracy murder” counts ................................... 793 ii. Insufficiency of the evidence on the “CCE murder” counts............................................. 796 2. Ground No. 4: The “merits” verdicts were against the weight of the evidence....................................................797 3. Ground No. 13: The admission of, arid argument from, evidence of Honken’s guilty plea, conviction, and offense details...............797 a. Background..................................................798 b. Arguments of the parties.......................................799 c. Analysis .....................................................800 i.Applicable law...........................................800 ii. The admission of Honken’s 1997 guilty plea and details of the offenses..........................................801 iii. The prosecutor’s argument concerning Honken’s 1997 conviction.............................................804 4. Ground No. 14: The admission of “bad acts” evidence................804 a. Background..................................................805 b. Arguments of the parties.......................................805 c. Analysis .....................................................805 i.Untimeliness ............................................805 ii. Evidence of drug activity after the killings.................806 iii. Other challenged evidence ............ 808 5. Ground No. 15: The admission of hearsay...........................809 a. Background..................................................810 b. Arguments of the parties.......................................810 c. Analysis .....................................................811 i.Admissibility of statements of Nicholson and DeGeus........811 ii.Admissibility of Honken’s 1997 guilty plea..................814 6. Ground No. 16: The admission of Rick Held’s testimony concerning Honken’s purchase of a firearm........................815 a. Background..................................................815 b. Arguments of the parties.......................................815 c. Analysis .....................................................816 i. “Testimonial” hearsay....................................816 ii. Admissibility............................................819 7. Ground No. 17: The admission of evidence from McNeese.............820 8. Ground No. 22: The admission of evidence that Johnson was. the “principal” in the offenses.......................................820 a. Background..................................................821 b. Arguments of the parties.......................................821 c. Analysis ...........................'..........................822 9. Ground No. 18: The closing argument allegedly in violation of Johnson’s right against self-incrimination........................824 a. Background..................................................824 b. Arguments of the parties.......................................824 c. Analysis .....................................................827 i. Violation of the right against self-incrimination ............827 ii. The prosecutor’s argument that Johnson may have been “the shooter.”..........................................829 10. The “merits phase” jury instructions...............................830 a. Applicable standards..........................................831 b. Ground No. 12: The preliminary jury instructions................831 i. Background..............................................831 ii. Arguments of the parties..................................833 iii. Analysis.................................................833 c. Ground No. 19: Substantive errors in the “Merits Phase” Jury Instructions...........................................834 i. Active continuance of drug offenses........................835 ii. Unanimous verdict on predicate CCE offenses ..............836 iii. Lack of a buyer-seller instruction..........................837 iv. Failure to instruct that the killings resulted from Johnson’s conduct......................................839 F. Alleged Errors In The “Eligibility Phase”...............................841 1. Ground No. 2: Insufficiency of the evidence of “eligibility” factors.........................................................842 a. Arguments of the parties.......................................842 b. Analysis .....................................................843 i. Insufficient evidence of the “gateway aggravating factor.”................................................843 ii. Insufficient evidence of “planning and premeditation.”.....844 iii.Insufficient evidence of “torture” or “substantial physical abuse.” .............................................845 2. Ground No. 4: The “eligibility phase” verdicts were against the weight of the evidence...........................................846 G. Alleged Errors In The “Penalty Phase”.................................847 1. Ground No. 3: Insufficiency of the “penalty phase” evidence..........847 a. Arguments of the parties..................... 847 b. Analysis .....................................................848 2. Ground No. 4: The “penalty phase” verdicts were against the weight of the evidence...........................................849 3. Ground No. 20: The death penalty should be barred by advice to Johnson from a government agent................................850 a. Arguments of the parties.......................................850 b. Analysis .....................................................851 4. Ground No. 23: The admission of Mr. Vest’s testimony...............852 5. Ground No. 24: The admission of a former clerk’s testimony..........852 a. Background..................................................853 b. Arguments of the parties.......................................853 c. Analysis .....................................................854 6. Ground No. 25: The admission of a poem written by a murdered child’s friend..............:....................................854 a. Background..................................................855 b. Arguments of the parties.......................................855 c. Analysis .....................................................856 7. Ground No. 26: The cross-examination of Chief Book.................857 a. Background..................................................857 b. Arguments of the parties.......................................858 c. Analysis .....................................................858 8. Ground No. 27: The treatment of defense experts by the court.........859 a. Background..................................................860 b. Arguments of the parties.......................................862 c. Analysis .....................................................863 9. Grounds Nos. 34 and 22: The prosecutor’s closing argument ..........867 a. Background..................................................867 b. Arguments of the parties..................... 869 c. Analysis .....................................................869 10. Ground No. 28: Denial of motion to allocute.........................871 11. Ground No. 29: Striking the “substantial influence” mitigator........871 a. Background..................................................872 b. Arguments of the parties.......................................872 c. Analysis .....................................................872 12. Ground No. 10: Instructions and argument that mitigating factors could be given “no weight”...............................873 a. Background............. 873 b. Arguments of the parties.......................................874 c. Analysis .....................................................875 13. Ground No. 30: Placing the mitigators in a relatively negative light...........................................................877 a. Background..................................................878 b. Arguments of the parties.......................................879 c. Analysis .....................................................880 14. Ground No. 31: Failure to instruct in the “penalty phase” that the jury had not found certain aggravating factors in the “eligibility phase”..............................................882 15. Ground No. 33: Plain error in the “penalty phase” verdict form regarding ñndings for life or death...............................883 a. Background..................................................883 b. Arguments of the parties................ 884 c. Analysis .....................................................885 16. Ground No. 36: Prejudicial misconduct by a juror...................887 17. Ground No. 32: The verdicts on numerous mitigators demonstrate juror confusion and a miscarriage of justice.......................888 a. Arguments of the parties.......................................888 b. Analysis .....................................................890 H. Fundamental Eighth Amendment Violation .............................892 1. Arguments of the parties ..........................................893 2. Analysis.........................................................894 V. CONCLUSION............................................................897 After her separately indicted co-defendant, Dustin Honken, had been convicted as the “principal” on five capital counts of “conspiracy murder” and five capital counts of “CCE murder,” in violation of 21 U.S.C. § 848(e)(1)(A), for the killings of three adults and two children, defendant Angela Johnson came to trial in April 2005 on ten capital charges of “aiding and abetting” the same killings. Johnson’s trial was just as long and complicated as Honk-en’s, and also led to convictions on all ten capital counts. However, while Honken’s jury had recommended the death penalty only for the counts charging the killings of the children, Johnson’s jury recommended the death penalty not only for the killings of the children, but for the killings of two of the three adults, as well. The alleged unfairness of the recommendation of a more severe sentence for the “aider and abetter” than for the “principal” for two of the killings was a dominant theme of Johnson’s post-trial challenges to her convictions, and indeed, the potential for such a disparity in sentences has been a dominant theme in her arguments concerning the availability of the death penalty in her case ever since Honken was convicted as the “principal” for the same offenses. However, it is but one of thirty-eight alleged errors that Johnson contends should result in an arrest of judgment, a judgment of acquittal, or a new trial on one or more of the “merits,” “eligibility,” and “penalty” phases of her trial. The plethora of alleged errors explains, in part, the length and depth of the court’s ruling on Johnson’s post-trial motions. However, another reason is the fundamental principle that, in punishment of crimes, death is “different.” See, e.g., Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion); see also Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring). I. OVERVIEW Defendant Angela Jane Johnson, like her separately indicted co-defendant and some time boyfriend, Dustin Honken, was charged with five counts of “conspiracy murder” and five counts of “CCE murder,” in violation of 21 U.S.C. § 848(e)(1)(A), for the 1993 murders of five people who were witnesses to Honken’s drug-trafficking activities, or other criminal conduct, or both. Two of the murder victims were children, ages 6 and 10, who like their mother had had the misfortune to be at home when Johnson and Honken came looking for one of Honken’s drug dealers whom Honken and Johnson suspected of cooperating with law enforcement officers. The two children, their mother, and the drug dealer were shot to death in one episode and buried in a single grave. A second drug dealer, who was Johnson’s ex-boyfriend, and whom Honken and Johnson also suspected had or might cooperate with law enforcement officers, was shot and beaten to death in a separate episode more than three' months later and buried at a different burial site. Although the police suspected Honken and Johnson in the disappearances of these five victims, the two were not indicted on capital charges until 2001, after the discovery of the victims’ graves. Honken and Johnson were indicted and tried separately, with Honken’s trial first. Honken was convicted on all counts, and the jury recommended the death sentence for the capital counts charging the murders of the two children. In part because Honken had previously been convicted as a “principal” in the murders, the government elected to go to trial against Johnson only on the theory that Johnson “aided and abetted” the killings. In the “merits phase” of her trial, the jury found Johnson guilty of all ten capital counts. In the “penalty phase,” the jury made a binding recommendation that Johnson, like Honk-en, be sentenced to death, but on eight of the ten capital counts, not just four, as Honken had been. More specifically, Johnson’s jury recommended death sentences for the murders of the two children, their mother, and Johnson’s ex-boyfriend, but recommended a life sentence for the murder of the first drug dealer. Johnson has filed two post-trial motions, her August 19, 2005, Motion In Arrest Of Judgment (docket no. 636), and her August 19, 2005, Motion For Judgment Of Acquittal Or For New Trial (docket no. 634). In her Motion In Arrest Of Judgment, Johnson asserts that the following two flaws require the court to set aside the verdicts against her: GROUNDS FOR ARREST OF JUDGMENT Defendant’s No. Asserted Error 1. The indictment in this matter fails to ■ charge an offense in that an essential element of the offense is lacking from each of the counts in the indictment. Specifically, the indictment does not allege a “substantive connection” between the killings and the drug conspiracy or CCE offense charged. 2. The indictment as amended during jury selection to allege only that Angela Johnson aided and abetted the intentional killings faded to charge an offense cognizable under 21 U.S.C. § 848(e), and because of this defect, the court lacks jurisdiction. In her separate Motion For Judgment Of Acquittal- Or For New Trial, Johnson asserts that any one of thirty-six errors or incidents that occurred before or during her trial would require the court to enter judgment of acquittal on the capital charges, strike -the death penalty as an available punishment, and/or grant her an entirely new trial or, at the very least, grant her a new trial on the applicable penalties. While the court must consider each of Johnson’s thirty-six alleged errors, the court finds that Johnson has set them out in what appears to be a “stream of consciousness” order, without any apparent rhyme or reason. The court, however, finds it appropriate to consider the alleged errors chronologically, by phases of the case and trial, and then by topic or category in each phase, rather than simply in the order in which Johnson has listed them. Therefore, the court has reorganized the grounds for judgment of acquittal or new trial that Johnson raises as shown in the following chart, and will consider them in that order, although the court here states the grounds asserted essentially as Johnson stated them: GROUNDS FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL PRETRIAL RULINGS Defendant’s Court’s No. No. Asserted Error 5. 1. The trial court erred by not granting a change of venue, thereby denying defendant her right to a fair and impartial trial. 11. 2. The trial court erred in failing to strike legally insufficient allegations from Counts 6 through 10 as requested in defendant’s December 23, 2004 motion and further erred in submitting these allegations to the jury. 21. 3. The trial court erred in failing to strike the death penalty after the government amended the indictment during jury selection for the reasons argued in defendant’s May 1, 2005 filing. JURY SELECTION Defendant’s Court’s No. No. Asserted Error 7. 1. The peremptory challenge rule in capital cases violates equal protection and due process as argued in defendant’s pretrial filings. JURY SELECTION (continued) Defendant’s Court’s No. No. Asserted Error 6. 2. The trial court erred and denied defendant her right to a fail’ and impartial jury by not granting her additional peremptory challenges. 8. 3. The trial court erroneously struck for cause jurors 533, 458 and 769 thereby denying defendant her right to a fair trial before a fan- and impartial jury comprised of a cross-section of the community in violation of the Sixth, Eighth and Fourteenth Amendments. 9. 4. The trial court erroneously denied challenges for cause to jurors 52, 64, 109, 228, 293, 301, 379, 403, 495, 528, 576, 600, 617, 653, 788, 797 and 800 thereby depriving defendant her right to a fan- trial before a fair and impartial jury comprised of a cross-section of the community in violation of the Sixth, Eighth and Fourteenth Amendments. MERITS PHASE Defendant’s Court’s No. No. Asserted Error 1. 1. The evidence, when viewed in the light most favorable to the “guilt phase” verdicts, was not sufficient to establish the ele- - ments of the offenses charged beyond a reasonable doubt as required by due process. 4. 2. The weight of the evidence is against the jury’s verdicts and findings in each of the phases and a miscarriage of justice has occurred such that a new trial, in whole or in part, is warranted. 13. 3. The evidence of Honken’s guilty plea, conviction, and offense details and the government’s res judicata argument that Honken’s guilty plea and conviction established essential elements of the offenses charged against Angela Johnson violated Angela Johnson’s due process rights, including her right to confront and cross-examine witnesses against her. 14. 4. The trial court erred in allowing evidence of alleged criminal activity and other bad acts of defendant and other persons occurring after the date of the killings to be received in evidence without a limiting instruction. 15. 5. The trial court erred in receiving various hearsay statements made by Greg Nicholson, Dustin Honken and Terry DeGeus in violation of the Confrontation Clause. 16. 6. The trial court erred in admitting the testimony of Rick Held concerning Honken’s firearm purchase and Held’s conversation with an unknown female • caller in violation of the Rules of MERITS PHASE Evidence and the Confrontation Clause. 17. 7. The trial court and Court of Appeals erred in allowing the testimony of McNeese and the fruits of that testimony for all the reasons previously urged, including the fact that such testimony was received in violation of Johnson’s Fifth and Sixth Amendment rights. 22. 8. The trial court erred in failing to exclude all evidence and suggestion that defendant was the principal for the reasons argued in defendant’s May 1, 2005 motion. [IDENTIFIED BY JOHNSON AS A “PENALTY PHASE” ISSUE] 18. 9. Mr. Miller violated this court’s in limine ruling concerning defendant’s alleged role in the offense and violated her Fifth Amendment privilege against self incrimination during closing argument when he suggested that Angela Johnson may have been the shooter/trigger-person and when he argued that she had made no “claim of innocence” to various people who spoke to her and testified at trial. 12. lO.b. The trial court denied defendant a fair trial in violation of due process by reading to the jury and providing each of the jurors with an extensive and detailed set of Preliminary Instructions. 19.a. 10.c.i. The court did not adequately define that the underlying drug offenses had to have been proven to have existed before the killings and had to be actively continuing at the time of the killings; 19.b. lO.c.ii. The instructions on the CCE murder failed to adequately protect defendant’s right to an unanimous verdict with respect to the predicate drug offenses comprising the alleged series. 19.c. lO.c.iii. The instructions on the CCE murder failed to advise the jurors properly with respect to the insufficiency of proof of a buyer-seller relationship vis-á-vis Dustin Honken. 19.(1. 10-c.iv. The instructions did not require that the killings result from the conduct or actions of Angela Johnson. ELIGIBILITY PHASE Defendant’s No. Court’s No. Asserted Error 2. 1. The evidence, when viewed in the light most favorable to the “eligibility phase” verdict was not sufficient to establish those factors found by the jury beyond a reasonable doubt as required by due process. 4. 2. The weight of the evidence is against the jury’s verdicts and findings in each of the phases and a miscarriage of justice has occurred such that a new trial, in whole or in part, is warranted. PENALTY PHASE Defendant’s No. Court’s No. Asserted Error 3. 1. The evidence when viewed in the light most favorable to the “penalty phase” verdict was not sufficient to establish the aggravators found by the jury beyond a reasonable doubt as required by due process. 4. 2. The weight of the evidence is against the jury’s verdicts and findings in each of the phases , and a miscarriage of justice has occurred such that a new trial, in whole or in part, is warranted. 20. 3. The death penalty should be barred in this case where the government’s agent McNeese advised defendant that she could not receive the death penalty as part of his effort undertaken in concert with his government handlers to obtain a confession and the bodies of the five victims. To allow the death penalty to be pursued would be outrageous government conduct in violation of due process and fundamental fairness. 23. 4. The trial court erred in allowing the testimony of Mr. Vest as to alleged jailhouse statements of Dustin Honken because such testimony violated the Confrontation Clause, was not constitutionally reliable, and its probative value was substantially outweighed by unfair prejudice. 24. 5. The court erred in allowing its former law clerk to testify to statements she purportedly overheard defendant make in her presence when the court itself was a witness to defendant’s own letter of apology that had been misplaced or lost and where the court’s remedy denied the defendant the opportunity to take the sting out of the evidence and created a false impression for the jury. PENALTY PHASE_ 25. 6.' The court erred in allowing Robert Milbrath to read the poem of Brittany to the jury where Brittany was not a relative of any victim and such evidence was offered for its extreme emotional impact with the jury, denying defendant her due process right to a fan- sentencing. 26. 7. The court erred in allowing testimony on cross-examination of Douglas Book that clearly bore no relation to his direct examination and where the testimony concerned allegedly recorded statements of the defendant of a purportedly threatening nature that were not the subject of any prior disclosure by the government, and whose probative value was greatly outweighed by unfair prejudice, all of which denied defendant due process of law. 27. 8. The trial court's conduct in interrupting and chastising defense experts Dr. Logan and Dr. Hutchinson sua sponte in the presence of the jury denied defendant her due process right to a fair and impartial penalty proceeding. 34. . 9. During the penalty phase closing, counsel for the government engaged in prejudicial improper argument when he suggested that the statutory mitigator for no prior criminal record did not apply and was not proven because Angela Johnson just “had not been caught” and when he further argued that the defense statutory mitigator concerning victim contributory responsibility was somehow created by the defense to “blame the victims.” These arguments denigrated these mitigating factors and misled the jury and denied defendant a fair penalty phase. 28. 10. The trial court erred in denying defendant’s motion filed on June 3, 2005 to allocate [sic: allocute] before the trial jury. 29. 11. The trial court erred in striking the defense mitigating factor concerning Angela Johnson being under the substantial influence of Dustin Honken and thereby denied defendant due process. _PENALTY PHASE 10. 12. The trial erred in instructing the venire, and allowing the prosecution to argue, that it is permissible for jurors to consider mitigating circumstances, but that they can give such mitigators that they find “no weight” if they choose to do so. This instruction violates the Eighth and Fourteenth Amendments and the Supreme Court’s mandate on the issue as set out in Eddings v. Oklahoma, 455 U.S. 104, 114-115 [,102 S.Ct. 869, 71 L.Ed.2d 1] (1982), Penry v. Lynaugh, 492 U.S. 302, 327-328 [,109 S.Ct. 2934, 106 L.Ed.2d 256] (1989) (Penry I), and Penry v. Johnson, 532 U.S. 782, 797[, 121 S.Ct. 1910, 150 L.Ed.2d 9] (2001) (Penry II)._ 30. 13. The court’s instructional language concerning the mitigators in comparison to the instructions concerning the aggravating factors at both the eligibility and penalty phases, placed the mitigators in a comparatively negative and weaker light than the aggravators. The verdict forms invited the jury to evaluate whether the mitigators “applied” ' but did not have similar language for the aggravators. The instructions told the jurors that the mitigators, including statutory mitigators, were things that the defense was merely “contending” constituted mitigating factors, while the prosecution “statutory” and “gateway” aggravators were given the imprimatur of law by having such labels affixed to them by the court. The instructions constituted an impermissible negative judicial comment on the mitigating factors and an impermissible positive comment on the aggravators, and denied defendant due process of law. 31. 14. The trial court erred in denying defendant’s request to instruct the jury in the final penalty phase instructions that it had not found defendant to have engaged in substantial planning and premeditation with respect to the first four killings and that such finding was not subject to being revisited by the jury in their final penalty phase deliberations. In light of the evidence admitted at the third phase that was not admissible at the earlier phases, the failure to instruct deprived defendant of due process. PENALTY PHASE_ 33. 15. The verdict forms were plainly erroneous and in conflict with the narrative instructions. The instructions correctly told the jury that if they could not unanimously agree upon the death penalty, the court would impose a life sentence. However, the verdict form required the jury to return an unanimous verdict itself imposing a life sentence without possibility of parole. The forms of verdict only allowed a “life” verdict if the jury unanimously agreed upon a life sentence. This verdict form was in error in that it should have contained only an option for an unanimous death verdict and a second verdict form stating the jury could not unanimously agree upon a death sentence. This verdict form error denied defendant due process and her statutory right. 36. 16. One juror engaged in prejudicial misconduct when he sought and received information during the week preceding penalty phase arguments concerning prison conditions for an inmate serving a sentence of life without parole and one on death row. 32. 17. The verdicts on numerous mitigators are contrary to the weight of the evidence and evidence that the jury was either confused by the instructions, declined to follow the instructions or simply disregarded the evidence and rendered verdicts that evidence a miscarriage of justice, all in violation of due process. EIGHTH AMENDMENT VIOLATION Defendant’s Court’s No. No. Asserted Error 35. 1. Imposition of the death penalty under the circumstances shown in this record would violate the Eighth Amendment. The government resisted both of Johnson’s post-trial motions on each and every ground asserted. The court will turn to a detailed explication of its ruling on Johnson’s post-trial motions below, after a more detailed statement of the context of the “merits,” “eligibility,” and “penalty” verdicts on all ten counts against Johnson. II. INTRODUCTION A. Background As with other rulings in this case, the background to defendant Johnson’s motions in arrest of judgment and for judgment of acquittal or new trial begins with a survey of co-defendant Dustin Honken’s prior prosecutions in this judicial district, Johnson’s relationship with Honken, and a description of the charges against Johnson in this case. In addition, the court must now add a summary of the proceedings leading to Johnson’s conviction and jury recommendation for death sentences on eight of the ten capital charges against her. However, specific incidents or factual circumstances may require further amplification, in the legal analysis to follow, as they become relevant to issues that Johnson raises in her post-trial motions. 1. Prior prosecutions of Honken The genesis for the capital charges against Johnson is found in the 1993 prosecution of her then boyfriend, Dustin Honk-en, for drug-trafficking offenses in this district (“the 1993 case”). As the Eighth Circuit Court of Appeals concisely explained, In April 1993, a grand jury in the Northern District of Iowa indicted [Honken] for conspiracy to distribute methamphetamine. After the disappearance of one or more prospective prosecution witnesses, the government dismissed the indictment. United States v. Honken, 184 F.3d 961, 963 (8th Cir.), cert. denied, 528 U.S. 1056, 120 S.Ct. 602, 145 L.Ed.2d 500 (1999). Thus, the first prosecution of Honken in this district did not lead to a conviction, but it did give rise to the subsequent capital prosecutions of both Honken and Johnson, as explained more fully below. 2. The disappearance of the witnesses The witnesses whose convenient disappearance ended the 1993 prosecution against Honken were Gregory Nicholson, Lori Duncan, Duncan’s two daughters, Kandi and Amber Duncan, and Terry De-Geus. Nicholson and DeGeus had both been methamphetamine dealers for Honk-en. At one time, Terry DeGeus had also been Angela Johnson’s boyfriend — albeit in a stormy and physically abusive relationship. The evidence at Johnson’s trial showed that, after Honken was indicted in 1993, he and Johnson, who was by then Honken’s girlfriend and pregnant with his daughter, became concerned that Nicholson might testify against Honken. Therefore, Honk-en and Johnson began a search for Nicholson, who had suddenly changed residences. Honken and Johnson eventually discovered that Nicholson had moved in with Lori Duncan and her two daughters, Kandi Duncan and Amber Duncan, ages ten and six, respectively. On or about July 25, 1993, Johnson gained entry to the Duncan’s house by a ruse, followed by Honken, who was armed with a gun that Johnson had acquired for him. The evidence showed that, at least initially, Honken and Johnson used threats to the Duncans to extort a videotaped statement from Nicholson exonerating Honken of any drug-trafficking activity. However, Nicholson and the Duncans were eventually removed from the house at gunpoint, driven into the country in a car that Johnson had borrowed from her babysitter, the adults were bound, gagged, and tortured, and all four victims were shot to death. Honken and Johnson then buried these four victims in a single shallow grave. The evidence at Johnson’s trial also showed that her relationship with DeGeus had been stormy: Johnson presented evidence at trial that DeGeus had often beaten her, including evidence of police responses to domestic abuse calls. However, DeGeus was not killed until several months after he and Johnson had separated and Johnson had become involved in a sexual relationship with Honken. On or about November 5, 1993, approximately seven days after a Grand Jury questioned Johnson about DeGeus’s involvement in Honken’s drug-trafficking activities, Johnson lured DeGeus to a meeting with Honk-en in a secluded location, where Honken shot DeGeus several times, then beat him with a baseball bat before he died. De-Geus was buried in another shallow grave a few miles from the burial site of Nicholson and the Duncans. 3. Discovery of the murder victims’ bodies Law enforcement officers had always suspected that Honken and Johnson were involved in the disappearances of Nicholson, the Duncans, and DeGeus. However, it was several years before they were able to gather enough evidence to charge either of them with crimes arising from the disappearance of these witnesses. In the meantime, Honken was again indicted on drug-trafficking charges on April 11, 1996 (“the 1996 case”), this time with co-defendant Timothy Cutkomp. In 1997, Honken pleaded guilty to two of the four drug-trafficking charges against him in the 1996 case, and he began serving his sentence on those charges. See, e.g., Honken, 184 F.3d at 963; see also United States v. Honken, 2 Fed.Appx. 611 (8th Cir.2001) (unsuccessful appeal of sentence). Eventually, in 2000, Johnson was indicted in Case No. CR 00-3034-MWB for the killings of Nicholson, the Duncans, and DeGeus on non-capital charges of aiding and abetting the murder of witnesses in violation of 18 U.S.C. §§ 1512(a)(1)(A) and (C), 1512(a)(2)(A) or 1513(a)(1)(A) and (C), 1111, and 2; one count of aiding and abetting the solicitation of the murder of witnesses, in violation of 18 U.S.C. §§ 373(a)(1) and 2; and one count of conspiracy to interfere with witnesses, in violation of 18 U.S.C. § 371. "While she was incarcerated pending trial on these charges, a jailhouse informant named Robert McNeese convinced Johnson that he could get someone already serving a life sentence to confess to the killings, if she could give him information that would provide a credible basis for the false confession. In addition to other information about the killings, Johnson gave McNeese a map that showed where the five murder victims were buried. McNeese turned the map over to law enforcement officers. The map led law enforcement officers to the two shallow graves containing the bodies of the five murder victims. After the bodies were recovered, Johnson made an unsuccessful suicide attempt. 4. The indictments in this case Following the discovery of the bodies, a Grand Jury handed down separate indictments against Honken and Johnson on August 30, 2001, charging each of them with ten capital offenses for the murders of Nicholson, the Duncans, and DeGeus. This second indictment against Johnson, in this case, Case No. CR 01-3046-MWB, charged Johnson with five counts of killing or aiding and abetting the killing of witnesses while engaging in a drug-trafficking conspiracy (“conspiracy murder”), in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2; and five counts of killing or aiding and abetting the killing of the same witnesses in furtherance of a continuing criminal enterprise (“CCE murder”), also in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. The 2001 indictment against Honken charged him with the identical capital charges as well as seven non-capital offenses that mirrored the seven non-capital charges against Johnson in the 2000 indictment in Case No. CR 00-3034-MWB. On April 25, 2002, the government filed in both cases against Johnson its notice of intent to seek the death penalty on all of the charges relating to the murder of witnesses, that is, Counts 1 through 5 of the first indictment in Case No. CR 00-3034-MWB, and all ten of the charges in the second indictment in Case No. CR 01-3046-MWB. Those notices identified the factors that the government contended warranted the imposition of the death penalty under the applicable death-penalty statutes. Various superseding indictments were filed in both cases against Johnson. Although the charges in the two indictments survived various challenges by Johnson, on November 15, 2004, the court granted the government’s November 3, 2004, renewed motion in Case No. CR 00-3034-MWB to dismiss, without prejudice, Counts 1-5 and portions of Count 7 of the superseding indictment. The government’s goal in seeking to dismiss the charges or parts of charges in question was to eliminate the need for two juries or two trials and to prevent possible error, in light of a ruling of the Eighth Circuit Court of Appeals on interlocutory appeals that certain evidence from the jailhouse informant, Robert McNeese, and other evidence developed from his evidence, would not be admissible as to the counts of Case No. CR 00-3034-MWB that involved the alleged murders of five witnesses, but would be admissible as to charges that involved the alleged murders of the same witnesses in Case No. CR 01-3046-MWB. As a result of the partial dismissal of the first indictment, the charges in Case No. CR 00-3034-MWB consisted of one count of aiding and abetting the solicitation of the murders of witnesses Timothy Cutkomp and Daniel Co-been, in violation of 18 U.S.C. §§ 373(a)(1) and 2, and one count of conspiracy to interfere with witnesses Cutkomp and Co-been, in violation of 18 U.S.C. § 371, but the latter charge no longer related to the murders of Nicholson, the Duncans, and DeGeus. Subsequently, on December 8, 2004, the government filed a Second Superseding Indictment in Case No. CR 01-3046-MWB, which essentially consolidated the remaining counts in the two separate cases into a single indictment. Then, on December 14, 2004, the government moved to dismiss the superseding indictment in Case No. CR 00-3034-MWB, because all charges against Johnson were then consolidated into a single charging document in Case No. CR 01-3046-MWB. Johnson concurred in the dismissal of that indictment on December 15, 2004. Therefore, on December 15, 2004, the court dismissed the superseding indictment in Case No. CR 00-3034-MWB, and denied as moot all motions pending it that case, leaving Case No. CR 01-3046-MWB as the only case against Johnson. On January 11, 2005, the government moved to dismiss Counts 11 and 12 of the Second Superseding Indictment in Case No. CR 01-3046-MWB, stating that the government no longer had any intention of pursuing those charges. By order dated January 15, 2005, the court granted the government’s motion to dismiss Counts 11 and 12 and also denied as moot several motions pertaining to those counts. Thus, the only charges pending against Johnson from that time through trial were the charges of “conspiracy murder” in Counts 1 through 5 and the charges of “CCE murder” in Counts 6 through 10 of the Second Superseding Indictment in Case No. CR 01-3046-MWB. 5. Honken’s trial The case against Honken came to trial first in the fall of 2004. In Honken’s case, the government moved for an “anonymous” jury, and the court granted that motion. See United States v. Honken, 378 F.Supp.2d 880 (N.D.Iowa 2004) (originally filed under seal) (order for anonymous jury and determining degree of “anonymity”); United States v. Honken, 378 F.Supp.2d 925 (N.D.Iowa 2004) (originally filed under seal) (order denying motion to reconsider order for anonymous jury and determining degree of “anonymity”). Therefore, jurors’ names, addresses, and places of employment, and the names of spouses and their places of employment, were not disclosed to the parties, their counsel, or the public, either before or after selection of the jury panel. However, each juror’s community of residence and the “nature” of his or her employment, and the “nature” of his or her spouse’s employment, were disclosed to the parties, their counsel, and the public. Jury selection began in Honken’s case on August 17, 2004, and continued over twelve days until a jury was empaneled on September 8, 2004. The “merits phase” of the trial began that day and continued, usually four days a week, until the issue of Honken’s guilt or innocence was submitted to the jury on October 11, 2004. The jury returned a verdict on October 14, 2004, finding defendant Honken guilty of all seven non-capital and all ten capital charges against him. The “penalty phase” of Honken’s trial on the capital charges commenced on October 18, 2004, and concluded on October 21, 2004, at which time, the jury began its “penalty phase” deliberations. An issue of improper contacts with a juror arose during the “penalty phase” deliberations. Ultimately, on October 25, 2004, the court excused one juror and substituted an alternate juror. The jury was then instructed to begin its “penalty phase” deliberations anew. On October 27, 2004, the reconstituted jury rendered its “penalty phase” verdict, finding that a sentence of life imprisonment should be imposed upon Honk-en for the murders of Greg Nicholson, Lori Duncan, and Terry DeGeus, but that a sentence of death should be imposed for the murders of Amber and Kandi Duncan. The jury contact issue and the verdicts, in both the “merits phase” and the “penalty phase,” garnered considerable additional media coverage, some of which mentioned Angela Johnson’s alleged involvement in the killings, as well as Honken’s. On December 16, 2004, the court heard evidence in support of post-trial motions in Honken’s case. The parties in Honken’s case briefed his post-trial motions through the spring of 2005, during which time, Johnson’s case came to trial. On July 29, 2005, approximately nine months after the conclusion of Honken’s trial, and approximately two months after the conclusion of Johnson’s trial, the court entered a two-hundred-six-page ruling denying Honken’s post-trial motions on all grounds. See United States v. Honken, 381 F.Supp.2d 936 (N.D.Iowa 2005) (ruling on defendant’s post-trial motions for judgment of acquittal or new trial, including ruling on allegations of juror misconduct and jury tampering). On October 12, 2005, the court sentenced Honken to death on the charges involving the killings of Amber and Kandi Duncan and to life imprisonment on the-charges involving the killings of Lori Duncan, Greg Nicholson, and Terry DeGeus. The court ordered that the execution of Honken’s death sentence be carried out in Terre Haute, Indiana. Honken is now pursuing appeals from death row in Terre Haute, Indiana. B. Significant Rulings Before And During Johnson’s Trial Before and during Johnson’s trial (and thus, before, during, and after Honken’s trial), the court entered a number of significant rulings in Johnson’s case. Many of those rulings are the subject of post-trial challenges, so that they will be summarized in pertinent portions of the present ruling. Nevertheless, the court deems it appropriate to survey the significant rulings before and during Johnson’s trial here, although' the survey will be by topic or category, rather than by chronology. Johnson’s challenges to the sufficiency of the pleadings in her case were addressed in the following three rulings: United States v. Johnson, 225 F.Supp.2d 982 (N.D.Iowa 2002) (ruling on appeal of magistrate judge’s orders regarding bill of particulars affirming magistrate judge’s order that the government specify, as to the drug conspiracy counts, the names of all known but unindicted co-conspirators, and, as to the CCE counts, all known supervisees, supervisors, managers, or organizers, and upon reconsideration, requiring that the government disclose the loeation(s), substance, time, place, and date of each overt act upon which the government intended to rely to prove the CCE underlying the offenses charged in Counts 6 through 10 of the second indictment); United States v. Johnson, 225 F.Supp.2d 1009 (N.D.Iowa 2002) (ruling on-the defendant’s motion to dismiss the indictment on capital charges for failure to plead essential elements, denying the motion as to the “conspiracy murder” counts, but dismissing the “CCE murder” counts without prejudice to filing of a superseding indictment adequately pleading the essential element of the existence of the underlying CCE); United States v. Johnson, 377 F.Supp.2d 686 (N.D.Iowa 2005) (order denying the defendant’s motion to dismiss for failure to charge offenses owing to purported omission of “substantive connection” between killings and drug conspiracy or CCE, finding the argument waived by untimely assertion, and that the superseding indictment did adequately charge the necessary “substantive connection”). Johnson also made various constitutional and other challenges to the charges against her. United States v. Johnson, 239 F.Supp.2d 897 (N.D.Iowa 2002) (ruling denying the defendant’s motion to dismiss non-capital offenses on statute of limitations grounds); United States v. Johnson, 270 F.Supp.2d 1060 (N.D.Iowa 2003) (ruling denying the defendant’s motion to reconsider denial of motion to dismiss non-capital offenses on statute of limitations grounds); United States v. Johnson, 239 F.Supp.2d 924 (N.D.Iowa 2003) (ruling denying the defendant’s motion to declare death-penalty provisions of 21 U.S.C. § 848 unconstitutional, which asserted that those provisions treat “aggravating factors” as mere “sentencing factors,” rather than as elements of capital offenses; that the “relaxed evidentiary standard” in the “penalty phase” of sentence determination under § 848 violates a defendant’s due process, confrontation, and cross-examination rights; and that the government’s “novel” attempts to overcome the unconstitutional aspects of the statute were not permissible); United States v. Johnson, 378 F.Supp.2d 1049 (N.D.Iowa 2005) (order denying the defendant’s renewed motion to strike death penalty where government was no longer asserting her guilt as a “principal”). Johnson also challenged allegedly improperly acquired evidence. More specifically, she challenged use of the evidence from the jailhouse informant, Robert McNeese, as to the original, non-capital indictment, then as to the subsequent, capital indictment. While this court ruled in her favor, in substantial part, on these challenges, see United States v. Johnson, 196 F.Supp.2d 795 (N.D.Iowa 2002) (ruling on the defendant’s motion to suppress evidence from jailhouse informant as to indictment on non-capital offenses); United States v. Johnson, 225 F.Supp.2d 1022 (N.D.Iowa 2002) (ruling on the defendant’s motion to suppress evidence from jailhouse informant as to subsequent indictment on capital offenses), the Eighth Circuit Court of Appeals was less sympathetic, and overturned much of this court’s rulings, thereby making the evidence from McNeese admissible with only limited restrictions. See United States v. Johnson, 352 F.3d 339 (8th Cir.2003) (panel rehearing and amplification of prior decision reversing in substantial part the district court’s ruling and holding, instead, that evidence obtained by McNeese before September 11, 2000, was admissible under the first indictment; that evidence obtained by McNeese on or after that date was inadmissible on the first indictment; but that all of the evidence obtained by McNeese was admissible on the second indictment), cert. denied, — U.S. -, 125 S.Ct. 76, 160 L.Ed.2d 45 (2004); United States v. Johnson, 338 F.3d 918 (8th Cir.2003) (first panel decision reversing the district court in substantial part). Also, Johnson sought and obtained from this court an order for return of ostensibly privileged documents inadvertently disclosed to law enforcement officers and then provided to the prosecutors. See United States v. Johnson, 378 F.Supp.2d 1041 (N.D.Iowa 2005) (originally filed under seal) (order for return to the defendant of a chronology of the defendant’s life prepared by the defendant’s mitigation specialist obtained by law enforcement officers when the defendant sent it to a third party improperly marked as legal mail). Johnson, and the government as well, also challenged the admissibility of various kinds of evidence, generating several substantial pretrial rulings. See United States v. Johnson, 354 F.Supp.2d 939 (N.D.Iowa 2005) (ruling on first round of pretrial motions); United States v. Johnson, 362 F.Supp.2d 1043 (N.D.Iowa 2005) (ruling on second round of pretrial motions); United States v. Johnson, 379 F.Supp.2d 1005 (N.D.Iowa 2005) (ruling denying the defendant’s motion to exclude evidence of identification of remains where the defendant had stipulated to identity of remains); United States v. Johnson, 377 F.Supp.2d 689 (N.D.Iowa 2005) (order granting in part and denying in part the defendant’s motion to exclude evidence and argument that she acted as a “principal” in the alleged killings); United States v. Johnson 378 F.Supp.2d 1051 (N.D.Iowa 2005) (order on the defendant’s motion to exclude hearsay testimony during the “penalty phase” on Confrontation Clause, due process clause, and statutory grounds, recognizing that “trifurcation” provides adequate protection for these constitutional rights). Several of the specific rulings in these decisions are challenged again, in Johnson’s post-trial motions. Johnson’s intention to assert her mental condition as a mitigating factor in the “penalty phase,” if any, engendered two substantial rulings. See United States v. Johnson, 362 F.Supp.2d 1043 (N.D.Iowa 2005) (ruling on second round of pretrial motions, including ruling on the government’s motion for court-ordered mental examination of the defendant) (also identified above as a ruling on the admissibility of evidence); United States v. Johnson, 383 F.Supp.2d 1145 (N.D.Iowa 2005) (ruling on management of experts, where the defendant asserted her Fifth Amendment right against self-incrimination in response to offense-specific questions). Finally, jury and trial management issues generated substantial rulings. First, the court considered, sua sponte, the proper degree of case-specific questioning, if any, that is permissible in the course of life- or death-qualifying prospective jurors. See United States v. Johnson, 366 F.Supp.2d 822 (N.D.Iowa 2005). The court also ruled that Johnson’s trial would be “trifurcated” into three phases: (1) a “merits phase,” to determine guilt or innocence of the charged offenses; (2) an “eligibility phase,” to determine whether one “gateway aggravating factor” identified in § 848(n)(l) and one or more of the “statutory aggravating factors” in § 848(n)(2) through (12) were present; and (3) a “penalty phase,” to determine whether “non-statutory aggravating factors” and “mitigating factors” were present and “ ‘whether the aggravating factors found to exist sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of mitigating factors, whether the aggravating factors are themselves sufficient to justify a sentence of death.’ ” See United States v. Johnson, 362 F.Supp.2d 1043, 1099-1111 (N.D.Iowa 2005) (quoting 21 U.S.C. § 848(k)). Subsequently, in response to Johnson’s challenge to hearsay testimony during the “penalty phase” on Confrontation Clause, Due Process Clause, and statutory grounds, the court ruled that “trifurcation” provided adequate protection for these constitutional rights. See United States v. Johnson 378 F.Supp.2d 1051 (N.D.Iowa 2005) (also mentioned above as a ruling on admissibility of evidence). These rulings set the stage for Johnson’s trial on the ten capital offenses charged against her. C. Johnson’s Trial 1. The charges at trial Johnson’s case came to trial approximately five-and-one-half months after the conclusion of Honken’s trial, but while post-trial motions were still pending in Honken’s case. Prior to Johnson’s trial, the government withdrew its allegations that Johnson was a “principal” in the murders and, instead, proceeded to trial only on the theory that Johnson “aided and abetted” each of the “conspiracy murders” and “CCE murders.” See Government’s April 29, 2005, Motion To Strike Language From Indictment (docket no. 449); Order, April 29, 2005 (docket no. 450) (granting motion to strike). Therefore, at the time of trial, Counts 1 through 5 of the Indictment, the “conspiracy murder” counts, charged that, on or about July 25, 1993, in the case of Nicholson and the Duncans, and on or about November 5, 1993, in the case of DeGeus, while Angela Johnson was knowingly engaging in a conspiracy to commit drug-trafficking offenses, Angela Johnson aided and abetted the intentional killings of the named individuals, and such killings resulted, all in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. Somewhat more specifically, Count 1 alleged the “conspiracy murder” of Gregory Nicholson; Count 2 alleged the “conspiracy murder” of Lori Duncan; Count 3 alleged the “conspiracy murder” of Kandi Duncan; Count 4 alleged the “conspiracy murder” of Amber Duncan; and Count 5 alleged the “conspiracy murder” of Terry DeGeus. Similarly, Counts 6 through 10 of the Indictment, the “CCE murder” counts, charged that, on or about July 25, 1993, in the case of Nicholson and the Duncans, and on or about November 5, 1993, in the case of DeGeus, while Johnson was working in furtherance of a “continuing criminal enterprise” (CCE), Johnson aided and abetted the intentional killings of the named individuals, and such killings resulted, also all in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. Somewhat more specifically, Count 6 alleged the “CCE murder” of Gregory Nicholson; Count 7 alleged the “CCE murder” of Lori Duncan; Count 8 alleged the “CCE murder” of Kandi Duncan; Count 9 alleged the “CCE murder” of Amber Duncan; and Count 10 alleged the “CCE murder” of Terry DeGeus. 2. Jury selection As in Honken’s case, well in advance of trial, the court authorized the use of an extensive juror questionnaire to obtain basic biographical information about each prospective juror, as well as more detailed information about the juror’s views on trial-related issues, such as the death penalty. Also as in Honken’s case, the court authorized Johnson’s defense team to hire a jury consultant, who participated in the drafting of the juror questionnaire. Unlike Honken’s jury, Johnson’s jury was not “anonymous,” so potential jurors in Johnson’s case were asked in the juror questionnaire for some additional biographical information that had not been available in Honken’s case. Nevertheless, the prospective and fin