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United States v. Johnson

United States District Court, N.D. Iowa, Central Division

January 16, 2013

UNITED STATES of America, Plaintiff,
v.
Angela JOHNSON, Defendant.

Opinion Denying Reconsideration March 5, 2013.

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Alfred E. Willett, Terpstra, Epping & Willett, Cedar Rapids, IA, Dean A. Stowers, Rosenberg, Stowers & Morse, Robert R. Rigg, Drake University Legal Clinic, Des Moines, IA, Patrick J. Berrigan, Watson & Dameron, LLP, Kansas City, MO, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S MOTION TO DISMISS CERTAIN STATUTORY AND NON-STATUTORY AGGRAVATING FACTORS FROM THE GOVERNMENT'S THIRD AMENDED NOTICE OF INTENT TO SEEK THE DEATH PENALTY

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I.

INTRODUCTION 966

II.

CONTEXTUAL MATTERS 967

A.

Scope Of The Penalty Retrial 968

B.

Aggravating Factors 971

1.

The role of aggravating factors 971

2.

Statutory aggravating factors 972

a.

Factors that can be considered 972

i.

Factors alleged and noticed 972

ii.

Factors that can properly be considered 973

b.

Factors that can be challenged 975

C.

Penalties 976

1.

Penalties vacated 976

2.

Possibility of a death sentence on Count 6 976

a.

Arguments of the parties 976

b.

Controlling authority 976

c.

Analysis 978

d.

Summary 979

3.

Possibility of a sentence less than life without parole on all Counts 979

a.

Arguments of the parties 979

b.

The statutory sentencing scheme 980

c.

Analysis 981

i.

Johnsons authority 981

ii.

The jury's ability to consider lesser penalties 981

iii.

The jury's ability to recommend a lesser penalty 983

iv.

The jury's ability to impose a lesser penalty 983

d.

Summary 985

D.

Necessity Of A Preliminary Evidentiary Showing 985

1.

Arguments of the parties 985

2.

Analysis 986

III.

CHALLENGES TO STATUTORY AGGRAVATING FACTORS 989

IV.

CHALLENGES TO THE NON-STATUTORY AGGRAVATING FACTORS 990

A.

Multiple Killings And Passage Of Time 990

1.

Allegations of the factors 990

2.

Arguments of the parties 990

3.

Standards for duplicativeness 991

4.

Analysis 993

B.

Lack of remorse 995

1.

Allegation of the factor 995

2.

Arguments of the parties 995

3.

Authority regarding lack of remorse as a separate factor 996

4.

Analysis 999

C.

Uncharged Criminal Conduct 1000

1.

Allegations of the factors 1000

2.

Duplicativeness 1000

3.

Inadmissibility in general 1001

a.

Statutory and other limitations 1001

i.

Arguments of the parties 1001

ii.

The purported statutory bar 1002

iii.

Admissibility of unadjudicated conduct in capital cases 1003

iv.

Admissibility of unadjudicated criminal conduct as an independent aggravating factor 1004

v.

Summary 1005

b.

Biased sentencing 1006

c.

More prejudicial than probative 1007

d.

Relevance and heightened reliability 1007

4.

Challenges to specific uncharged criminal conduct factors 1008

a.

Standards for sufficiency of non-statutory aggravating factors 1008

b.

The assault on Officer Tyler 1012

c.

The perjury factor 1013

d.

The threats and bravado incidents 1014

i.

Arguments of the parties 1014

ii.

Analysis 1015

e.

Assisting in the release of Putzier 1016

i.

Arguments of the parties 1016

ii.

Analysis 1016

f.

Conspiring to help Honken escape 1017

g.

Uncharged distribution of methamphetamine after 1997 1017

i.

Arguments of the parties 1017

ii.

Analysis 1018

h.

Soliciting a crime of violence 1019

i.

Arguments of the parties 1019

ii.

Analysis 1020

D.

Future Dangerousness 1020

1.

Allegation of the factor 1020

2.

Collateral estoppel/double jeopardy 1021

3.

Limitation to future dangerousness in prison 1022

4.

Insufficient notice 1023

5.

Sufficiency of the inmate assaults alleged 1025

E.

Victim Impact 1025

1.

Allegations of the factors 1025

2.

Arguments of the parties 1025

3.

Analysis 1026

V.

VINDICTIVENESS 1027

VI.

CONCLUSION 1029

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In this capital case, the defendant was convicted of aiding and abetting five murders in furtherance of a continuing criminal enterprise (CCE murder), in violation of 21 U.S.C. § 848(e), and sentenced to death for four of the murders and to life imprisonment without parole for the fifth. However, I ordered a resentencing hearing before a new jury, i.e., a " penalty retrial," as relief on the defendant's § 2255 Motion.[1] This case is now before me on the defendant's challenge to certain aggravating factors in the prosecution's amended notice of intent to seek the death penalty filed in anticipation of the " penalty retrial." The defendant's challenges to the aggravating factors in question are wide-ranging, including contentions that certain aggravating factors are duplicative or are insufficient to justify a sentence of death and that the prosecution's assertion of additional and reformulated aggravating factors at this point in the proceedings is vindictive. The prosecution stands fast on its assertion of all of the challenged aggravating factors, in the manner asserted, as proper and appropriate, because this " penalty retrial" has given the prosecution a " do over," with lessons learned from hindsight, just as it has given the defendant a " do over," owing to her trial counsel's errors. I find that, in their arguments challenging

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and supporting various aggravating factors, the parties have raised a number of issues relevant to the " context" of the entire " penalty retrial," because those issues have an impact on such things as what evidence will be admissible and what questions the new jury will be required to answer in the " penalty retrial." Thus, this ruling begins with the resolution of those " contextual" issues, before turning to resolution of the defendant's specific challenges to various aggravating factors.

I. INTRODUCTION

On May 24, 2005, a jury convicted defendant Angela Johnson of five counts of aiding and abetting murder in furtherance of a continuing criminal enterprise (CCE murder) in violation of 21 U.S.C. § 848(e), which are capital offenses under the Anti-Drug Abuse Act (ADAA). See Verdict Form (docket no. 527). These charges arose from the murders, by Johnson and her separately-indicted co-defendant Dustin Honken, who had been charged as the " principal," of two adults, Greg Nicholson and Lori Duncan, and Lori Duncan's two children, Kandi Duncan (age 10) and Amber Duncan (age 6), in one episode in July 1993, and the subsequent murder of another adult, Terry DeGeus, in a separate episode in November 1993. On May 31, 2005, the same jury found Johnson " eligible" for the death penalty on all five CCE murder convictions. See " Eligibility Phase" Verdict Form (docket no. 545). On June 21, 2005, the same jury also entered a " penalty phase" verdict, imposing a life sentence without possibility of parole for the CCE murder of Gregory Nicholson, but sentences of death for the CCE murders of Lori Duncan, Kandi Duncan, Amber Duncan, and Terry DeGeus. " Penalty Phase" Verdict Form (docket no. 593).[2] On March 22, 2012, however, I granted, in part, Johnson's § 2255 Motion by vacating her four death sentences and one life sentence for CCE murder. Johnson v. United States, 860 F.Supp.2d 663 (N.D.Iowa 2012).

The prosecution then opted for a resentencing hearing before a new jury, i.e., a " penalty retrial," pursuant to former 21 U.S.C. § 848(i)(1)(B) (2005) and the requirements of former 21 U.S.C. § 848(g)-( o ) (2005), to determine the penalty for Johnson's convictions, rather than withdraw its notice of intent to seek the death penalty, filed pursuant to former 21 U.S.C. § 848(h) (2005), which would have allowed the court to set a hearing to impose sentences of life imprisonment without parole, pursuant to former 21 U.S.C. § 848(p) (2005).[3] Pursuant to a Scheduling Order

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(docket no. 858), I set the " penalty retrial" for June 3, 2013, and, inter alia, a deadline of September 14, 2012, for motions making any facial or as applied challenges to the use of the death penalty in this case; a deadline of October 1, 2012, for the prosecution to file any amendment to its Notice Of Intent To Seek The Death Penalty (Notice Of Intent); and a deadline of November 1, 2012, for the defendant to file any motions challenging the sufficiency of the prosecution's Notice Of Intent.

Among her numerous motions filed on the September 14, 2012, deadline, Johnson included a Motion To Dismiss Particular Aggravating Factors From The Second Superseding Indictment, And To Strike Particular Aggravating Factors From The Second Notice Of Intent To Seek The Death Penalty, And For Other Relief (Motion To Dismiss Or Strike Certain Aggravating Factors) (docket no. 865). In my October 25, 2012, Memorandum Opinion And Order Regarding Defendant's Challenges To Capital Resentencing Hearing And The Second Superseding Indictment And Requests For Discovery (docket no. 903), published at United States v. Johnson, 900 F.Supp.2d 949 (N.D.Iowa 2012), among a great many other things, I ruled that the prosecution may and had properly asserted non-statutory aggravating factors in its Second Notice Of Intent To Seek The Death Penalty (Second Notice Of Intent) (docket no. 141), and that the jurors not only may but must consider those non-statutory aggravating factors for which notice has been given in the course of the individualized determination of the appropriate penalties for Johnson's CCE murder convictions. On the other hand, I found that the prosecution's filing of a Third Amended Notice Of Intent To Seek The Death Penalty (Third Notice Of Intent) (docket no. 879) on October 1, 2012, mooted the part of Johnson's Motion To Dismiss Or Strike Certain Aggravating Factors in which she contended that certain statutory and non-statutory aggravating factors set forth in the Second Superseding Indictment and/or the Second Notice Of Intent must be stricken or clarified, albeit without prejudice to timely reassertion as to the Third Notice Of Intent.

On November 1, 2012, Johnson filed her Motion To Dismiss Certain Statutory And Non-Statutory Aggravating Factors From The Government's Third Amended Notice Of Intent To Seek The Death Penalty (Challenge To Third Notice Of Intent) (docket no. 906), which is now before me. In her Challenge To Third Notice Of Intent, Johnson reasserts her original challenges to the prosecution's aggravating factors and adds new challenges specific to the aggravating factors as reformulated or added in the Third Notice Of Intent. The prosecution filed its Resistance (docket no. 919), on November 19, 2012, and Johnson filed her Reply (docket no. 929), on December 7, 2012. In light of some of Johnson's arguments in her Reply about the scope of the " penalty retrial," the prosecution filed a Surreply To Defendant's Motion To Dismiss Certain Statutory And Non-Statutory Aggravating Factors From Government's Third Amended Notice Of Intent To Seek The Death Penalty (Surreply) (docket no. 937), on December 17, 2012.

I conclude that Johnson's Challenge To Third Notice Of Intent is fully submitted on the written submissions.

II. " CONTEXTUAL" MATTERS

As noted above, Johnson's Challenge To Third Notice Of Intent is wide-ranging,

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incorporating her original challenges to the Second Notice Of Intent and asserting many new challenges. Somewhat more specifically, Johnson asserts that the prosecution has vindictively reasserted, reformulated, and added to the aggravating factors, after her success on her § 2255 Motion; asserted aggravating factors that are inapplicable, where she did not personally kill the victims; asserted aggravating factors that are duplicative of other aggravating factors or the charged offenses; asserted " lack of remorse" as a separate aggravating factor, when it is properly an aspect of " future dangerousness" ; asserted numerous alleged incidents of uncharged criminal conduct as separate, stand-alone aggravating factors, when they are properly aspects of a single " criminal conduct" aggravating factor; asserted aggravating factors without sufficiently reliable evidence to support them; and asserted aggravating factors insufficient to warrant a death verdict, even if they are supported by sufficient evidence.

In the course of their arguments on these challenges, however, the parties have raised a number of issues that I conclude must be resolved to put in context my subsequent analysis of Johnson's specific challenges to various aggravating factors and, just as importantly, to establish the context for the " penalty retrial," because those issues have an impact on such things as what evidence will be admissible and what questions the new jury will be required to answer in the " penalty retrial." Those " contextual" issues include the scope of the " penalty retrial," what aggravating factors are subject to challenge, what penalties are at issue, and whether or not a preliminary evidentiary showing is necessary before the prosecution can assert certain aggravating factors in the " penalty retrial." I will begin my analysis by resolving those " contextual" issues, but I will reserve for later the question of whether the Third Notice Of Intent is " vindictive," until after I have considered whether the challenged aggravating factors are otherwise properly asserted.

A. Scope Of The " Penalty Retrial"

In her Reply, Johnson acknowledges that she belatedly realized that, not only do the original jury's " merits phase" verdicts stand— that is, her convictions on the five CCE murder charges— but that the original jury's " eligibility phase" verdicts also stand— that is, the original jury's findings that she is " eligible" for the death penalty on all five CCE murder convictions. Johnson states that this realization has fundamentally changed her position as to the statutory aggravating factors alleged in the Third Notice Of Intent. In its Surreply, however, the prosecution argues that, while I " trifurcated" Johnson's trial into separate " merits," " eligibility," and " penalty" phases, subsections ( i ) and (j) of former § 848 only provide for a single sentencing hearing. Thus, the prosecution argues that, by vacating Johnson's sentences and ordering a " penalty retrial," I necessarily vacated both the " eligibility phase" and " penalty phase" verdicts. The prosecution also argues that it would be unreasonable— and prejudicial to it— to expect a new jury to weigh " empty labels" for " statutory aggravating factors," which had been found in the original " eligibility phase," without any evidence to support them, if the " eligibility phase" is not retried. The prosecution argues that Johnson cannot pick and choose the portions of the sentencing hearing that will be retried.

As I recounted in my ruling on Johnson's post-trial motions, I " trifurcated" Johnson's trial on the § 848(e) charges against her:

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

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whether one " gateway aggravating factor" identified in § 848(n)(1) 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)).

United States v. Johnson, 403 F.Supp.2d 721, 747 (N.D.Iowa 2005).

Johnson is correct that, in my ruling on her § 2255 Motion, I did not grant any relief from the original jury's verdicts convicting her on all counts against her, although she alleged errors in or affecting the " merits phase" of her trial in her § 2255 Motion. Johnson, 860 F.Supp.2d at 915-20. She is also correct that she did not seek, and I did not grant, any relief from the original jury's determination that she is " eligible" for the death penalty on all five CCE murder charges in the " eligibility phase." Id. Thus, the relief that I granted her is only a " penalty retrial," id., that is, a retrial of the third phase to determine whether " non-statutory aggravating factors" and " mitigating factors" are 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 former 21 U.S.C. § 848(k).

The prosecution argues, however, that the " do over" granted in this case requires a retrial of both the " eligibility phase" and the " penalty phase," because former § 848( i ) and (j) provide for only a single sentencing hearing. The prosecution is correct that former § 848( i ) provides that, if a defendant is found guilty of a capital offense defined in § 848(e), the court " shall conduct a separate sentencing hearing to determine the punishment to be imposed," and that it authorizes that " separate sentencing hearing" to be before a new jury empaneled for that purpose, if, inter alia, the original jury that determined guilt has been discharged or the sentence originally imposed must be redetermined. Former 21 U.S.C. § 848( i )(B)(1)(iii) & (iv). The prosecution is also correct that former § 848(j) provides for proof of all aggravating and mitigating factors in " the sentencing hearing." Former 21 U.S.C. § 848(j). Nevertheless, these and other sentencing provisions of former § 848 do not preclude sequential presentation of " information" about " statutory aggravating factors," then " non-statutory aggravating factors" and " mitigating factors," and specifically require sequential determination of whether or not " statutory aggravating factors" exist, then whether or not " non-statutory aggravating factors" and " mitigating factors" exist.

Specifically, former § 848(j) provides, in part, " Where information is presented relating to any of the aggravating factors set forth in subsection (n) of this section [ i.e., ‘ statutory aggravating factors'], information may be presented relating to any other aggravating factor [ i.e., ‘ non-statutory aggravating factor’ ] for which notice has been provided under subsection (h)(1)(B) of this section." Former 21 U.S.C. § 848(j) (also providing that " [t]he Government shall open the argument" ; then " [t]he defendant shall be permitted to reply" ; then " [t]he Government shall then be permitted to reply in rebuttal." ). In other words, no information about " non-statutory aggravating factors" (or " mitigating factors" ) may be presented until information

Page 970

about " statutory aggravating factors" is presented.

Moreover, former § 848(k) expressly requires that the jury make sequential findings about the existence of " statutory aggravating factors," then about the existence of " non-statutory aggravating factors" and " mitigating factors" and the balancing of all " aggravating factors" and " mitigating factors," as follows:

If one of the aggravating factors set forth in subsection (n)(1) of this section and another of the aggravating factors set forth in paragraphs (2) through (12) of subsection (n) of this section is found to exist, a special finding identifying any other aggravating factor for which notice has been provided under subsection (h)(1)(B) of this section, may be returned.... If an aggravating factor set forth in subsection (n)(1) of this section and one or more of the other aggravating factors set forth in subsection (n) of this section are found to exist, the jury, or if there is no jury, the court, shall then consider 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.

Former 21 U.S.C. § 848(k). Thus, a determination of the existence of " statutory aggravating factors" is required before the jury makes any determination of the existence of " non-statutory aggravating factors" and " mitigating factors."

It follows that it is permissible to require the presentation of any information or argument about " statutory aggravating factors" and the jury's determination of the existence of " statutory aggravating factors" in an " eligibility phase" of the trial that is separate from both a preceding " merits phase," involving evidence and a determination of guilt, and a subsequent " penalty phase," involving information about " non-statutory aggravating factors" and " mitigating factors" and the weighing of those factors with the " statutory aggravating factors." Cf. United States v. Bolden, 545 F.3d 609, 618 (8th Cir.2008) (noting that, in light of the plain language of 18 U.S.C. §§ 3593(b)-(e), " the FDPA contemplates a single penalty phase hearing at which all relevant evidence is admitted and, if the defendant is found eligible for the death penalty, ultimately weighed by the jury" ; that a number of district courts, including this one, had nevertheless concluded that the sentencing hearing could be " bifurcated" into " eligibility" and " selection" phases; that " [t]he only circuit to address this issue under the FDPA concluded that the statute contemplates but does not require a single penalty phase proceeding and encouraged district courts ruling on motions to trifurcate ‘ to consider carefully the ramifications of presenting ... evidence that would otherwise be inadmissible in the guilt phase ... to a jury that has not yet made findings concerning death eligibility,’ " (quoting United States v. Fell, 531 F.3d 197, 240 n. 28 (2d Cir.2008)); explaining that " [w]e agree that is a sound reading of the statute" ; but holding that the district court did not abuse its discretion in declining to bifurcate the sentencing hearing). Indeed, that is what happened in Johnson's original trial.

Moreover, because sequential presentation and determination is required, and may occur in separate " phases," in a case where the defendant did not seek and the court did not grant relief from the original jury's findings as to the existence of " statutory aggravating factors" in the " eligibility phase," nothing requires that the original jury's findings about the existence of " statutory aggravating factors" in the " eligibility phase" be reopened in a resentencing hearing before a new jury

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pursuant to § 848( i ). For the reasons stated below, beginning at page 21, the prosecution's concern that it will be prejudiced by a retrial limited to the " penalty phase" is unavailing. Therefore, the " penalty retrial" here is properly limited to a retrial of the " penalty phase," involving the determination of the existence of " non-statutory aggravating factors" and " mitigating factors" by the new jury and the new jury's weighing of the " statutory aggravating factors" found by the original jury with the " non-statutory aggravating factors" found by the new jury against any " mitigating factors" found by the new jury.

B. Aggravating Factors

1. The role of aggravating factors

The limitation of the " penalty retrial" to the third phase of the original trial gives rise to other issues. One such issue is the role of " statutory aggravating factors" and " non-statutory aggravating factors" in the phase of the trial to be retried. This is so, because " statutory aggravating factors" play a unique role in the " eligibility phase" of a capital trial after conviction for a capital offense pursuant to § 848(e), but " statutory aggravating factors" and " non-statutory aggravating factors" perform overlapping roles in the determination of the appropriate penalty for a conviction for a capital offense pursuant to § 848 in the " penalty phase" of such a capital trial.

In the " eligibility phase," the jurors determine whether or not certain " statutory aggravating factors" exist. See former 21 U.S.C. § 848(k). Such " statutory aggravating factors" are defined in this case in former § 848(n). " Statutory aggravating factors," if found to exist, " elevate the available statutory maximum sentence from life imprisonment to death." Johnson, 900 F.Supp.2d at 958 (internal quotation marks and citations omitted). This is so, because " statutory aggravating factors" are " the circumstances which make a defendant eligible for the death penalty." Id. at 966 (quotation marks and citations omitted); see also former 21 U.S.C. § 848(k). To put it another way, " statutory aggravating factors" " channel the sentencer's discretion" in deciding whether or not a defendant is " eligible" for the death penalty. Id.

In the " penalty phase," the jurors first determine whether or not " non-statutory aggravating factors" exist. See former 21 U.S.C. § 848(k). " Non-statutory aggravating factors" do not increase the maximum punishment to which the defendant is subject, because they are neither sufficient nor necessary under the ADAA (or the FDPA) for a sentence of death. Johnson, 900 F.Supp.2d at 958-59; see also former 21 U.S.C. § 848(k). Instead, even after Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the purpose of " non-statutory aggravating factors" is to allow for an individualized determination of whether a death sentence is justified for a particular defendant-in other words, they help to inform the selection decision. Id. at 958-59, 965-67.

Also in the " penalty phase," the jurors must weigh aggravating factors against mitigating factors. Although " non-statutory aggravating factors" have no role in the " eligibility phase" in determining a defendant's " eligibility" for a death sentence (only " statutory aggravating factors" have that role), " non-statutory aggravating factors" and " statutory aggravating factors" play the same role in the " penalty phase," because all aggravating factors found to exist must be weighed against any " mitigating factors" found to exist to determine the appropriate penalty for a particular defendant. See former 21 U.S.C. § 848(h)(1)(B) (requiring the prosecution to give notice of " the aggravating factors enumerated in subsection (n) of this section [ i.e., the ‘ statutory aggravating factors'] and any other aggravating factors

Page 972

[ i.e., the ‘ non-statutory aggravating factors'] which the Government will seek to prove as the basis for the death penalty" ); former 21 U.S.C. § 848(j) ( " In the sentencing hearing, information may be presented as to matters relating to any of the aggravating or mitigating factors set forth in subsections (m) and (n) of this section, or any other mitigating factor or any other aggravating factor for which notice has been provided under subsection (h)(1)(B) of this section." ); former 21 U.S.C. § 848(k) (requiring weighing of " the aggravating factors found to exist" with mitigating factors found to exist to determine whether a death sentence is justified).

2. " Statutory aggravating factors"

In this case, in the " eligibility phase," Johnson's original jury made the determination that she was " eligible" for the death penalty on all five CCE murder charges, based on its finding that certain " statutory aggravating factors" existed. As explained above, that determination will not be revisited in the " penalty retrial" before a new jury. However, the " statutory aggravating factors" found by the original jury in the " eligibility phase" are still relevant in the retrial of the final " penalty phase" before a new jury, because, in the " penalty phase," both " statutory aggravating factors" and " non-statutory aggravating factors" are considered for the purpose of an individualized determination of whether a death sentence is justified for a particular defendant, i.e., they help inform the selection decision. Johnson, 900 F.Supp.2d at 958-59, 965-67 (quotation marks and internal citations omitted).

Further questions follow from the conclusion that " statutory aggravating factors" are still relevant in, and perform the same role as " non-statutory aggravating factors" in, the retrial of the " penalty phase," notwithstanding that the " eligibility phase" will not be retried. The first question is, what " statutory aggravating factors" can be considered by the new jury? The second question is, what " statutory aggravating factors" can now be challenged by the defendant?

a. Factors that can be considered

The question of what " statutory aggravating factors" can be considered in the " penalty retrial" arises, because the Third Notice Of Intent does not conform to the original jury's " eligibility phase" findings of " statutory aggravating factors." See " Eligibility Phase" Verdict Form (docket no. 545). Instead, it reiterates some additional " statutory aggravating factors" alleged in the Second Superseding Indictment (docket no. 233).

i. Factors alleged and noticed

More specifically, the Second Superseding Indictment (docket no. 233), like the Superseding Indictment (docket no. 99), alleged the following " statutory aggravating factors" : all three " intent" factors (former § 848(n)(1)(A), (B), and (C)) as to all five CCE murders; " substantial planning and premeditation" (former § 848(n)(8)) as to all five CCE murders; " heinous, cruel, or depraved manner" (former § 848(n)(12)) as to all five CCE murders; and " vulnerable victims" (former § 848(n)(9)) as to the CCE murders of the two children (Counts 8 and 9). In the Second Notice of Intent (docket no. 141), filed between the filings of the two Superseding Indictments, and not amended before Johnson's first trial, the prosecution gave notice of intent to rely on these same " statutory aggravating factors" as to the same Counts. In the " eligibility phase" of Johnson's first trial, however, the prosecution relied on only one " intent" factor (former § 848(n)(1)(C)) [4] as to all five CCE

Page 973

murders, and on " heinous, cruel, or depraved manner" (former § 848(n)(12)) only as to the CCE murders of the three adults (Count 6, charging the CCE murder of Greg Nicholson, Count 7, charging the CCE murder of Lori Duncan, and Count 10, charging the CCE murder of Terry DeGeus), but not as to the CCE murders of the two children (Counts 8 and 9). The prosecution continued to rely on " substantial planning and premeditation" (former § 848(n)(8)) as to all five CCE murders, and on " vulnerable victims" (former § 848(n)(9)) as to the CCE murders of the two children (Counts 8 and 9).

In the " Eligibility Phase" Verdict Form (docket no. 545), the original jury unanimously found the single " intent" factor identified in former § 848(n)(1)(C) (called a " gateway aggravating factor" in the " Eligibility Phase" Instructions and Verdict Form) as to all five CCE murders. The original jury also unanimously found " vulnerable victims" (former § 848(n)(9)) as to the CCE murders of the two children (Counts 8 and 9), and " heinous, cruel, or depraved manner" (former § 848(n)(12)) as to the CCE murders of the three adults (Counts 6,7, and 10). However, the original jury found " substantial planning and premeditation" (former § 848(n)(8)) only as to the CCE murder of Terry DeGeus (Count 10), not as to any of the other murders.

The Third Notice Of Intent (docket no. 879), filed in anticipation of the " penalty retrial," matches the original jury's " eligibility phase" findings to the extent that it asserts only a single " intent" factor (former § 848(n)(1)(C)) as to all five CCE murders; " vulnerable victims" (former § 848(n)(9)) as to the CCE murders of the two children (Counts 8 and 9); and " heinous, cruel, or depraved manner" (former § 848(n)(12)) as to the CCE murders of the three adults (Counts 6,7, and 10). However, The Third Notice Of Intent departs from the original jury's findings by reanimating the prosecution's intent to rely on " substantial planning and premeditation" as to all five CCE murders, just as the Second Superseding Indictment and the Second Notice Of Intent alleged, not just as to the CCE murder of Terry DeGeus (Count 10), as the original jury found.

ii. Factors that can properly be considered

Because the original jury's " eligibility phase" verdict still stands for the " penalty retrial," the new jury may consider, in its weighing of aggravating and mitigating factors, only those " statutory aggravating factors" found by the original jury. See former 21 U.S.C. § 848(h)(1)(B), (j), and (k). More specifically, the new jury may consider the § 848(n)(1)(C) " intent" aggravating factor as to all five CCE murders; " vulnerable victims" as to the CCE murders of the two children (Counts 8 and 9); " heinous, cruel, or depraved manner" as to the CCE murders of the three adults (Counts 6,7, and 10); and " substantial planning and premeditation" only as to the CCE murder of Terry DeGeus (Count 10). The prosecution may not assert, and the new jury may not consider, " substantial planning and premeditation" as to the CCE murders of Nicholson or the three Duncans (Counts 6 through 9).

Moreover, notwithstanding that " statutory aggravating factors" and " non-statutory aggravating factors" perform the same role in the " penalty phase," the prosecution will not be allowed to reassert " substantial planning and premeditation" as a " non -statutory aggravating factor" as to the CCE murders of Nicholson or the three Duncans (Counts 6 through 9) before the new jury in the retrial of the

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" penalty phase." This is so, because the prosecution would not have been allowed to take such a " second bite at the apple" with the original jury, in the original " penalty phase," after its failure to obtain a unanimous finding, beyond a reasonable doubt, on the " substantial planning and premeditation" factor as a " statutory aggravating factor" in the original " eligibility phase." See former 21 U.S.C. § 848(k) (permitting the jury to consider, in sequence, whether or not " statutory aggravating factors" exist, then, if so, whether or not " non-statutory aggravating factors" and " mitigating factors" exist, and then weigh only those " aggravating factors" found to exist against those " mitigating factors" found to exist). I base my conclusion that the original jury's " eligibility phase" verdicts still stand for the retrial of the " penalty phase," and limit the " statutory aggravating factors" that can be weighed in the " penalty retrial," only on the process for making the penalty determination under the pertinent provisions of former § 848 and the lack of any allegation or finding of error in the " eligibility phase" in Johnson's § 2255 proceedings. I do not reach this conclusion on the basis of " double jeopardy," that is, on the basis that the original jury " acquitted" Johnson of the " substantial planning and premeditation" aggravating factor as to all of the CCE murders except Terry DeGeus's in the original " eligibility phase." See, e.g., Sattazahn v. Pennsylvania, 537 U.S. 101, 109, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) (" [T]he touchstone of double-jeopardy protection in capital-sentencing proceedings is whether there has been an ‘ acquittal.’ " ). Indeed, such a " double jeopardy" argument would be unavailing here. A finding of a " statutory aggravating factor" had to be unanimous, but a rejection of such a " statutory aggravating factor" did not have to be unanimous. See former 21 U.S.C. § 848(k) (" A finding with respect to any aggravating factor must be unanimous," but " [a] finding with respect to a mitigating factor may be made by one or more of the members of the jury." ). The statute does not require unanimity as to the non-existence of any " aggravating factor," and the original jury was not instructed that unanimity was required to reject an aggravating factor. Thus, rejection of a " statutory aggravating factor" would have only the non-preclusive effect of a " deadlocked" or " hung" jury. Sattazahn, 537 U.S. at 109-10, 123 S.Ct. 732.

The prosecution argues that it would be unreasonable— and prejudicial to it— to expect a new jury to weigh " empty labels" for " statutory aggravating factors" found by the original jury without any evidence to support them in the " penalty retrial." The answer to this argument is that former § 848(j) expressly contemplates the possibility of a different jury making a sentencing redetermination, as follows:

Information presented may include the trial transcript and exhibits if the hearing is held before a jury or judge not present during the trial, or at the trial judge's discretion. Any other information relevant to such mitigating or aggravating factors may be presented by either the Government or the defendant, regardless of its admissibility under the rules governing admission of evidence at criminal trials, except that information may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

Former 21 U.S.C. § 848(j) (emphasis added). Here, information about the " statutory aggravating factors," all of which came from the " merits phase" of the trial in this case, [5] is found in the trial transcript and exhibits, and that information will be admissible

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in the " penalty retrial." Id. Moreover, I do not read former § 848(j) to limit the information concerning " statutory aggravating factors" in a " penalty retrial" to the information in the trial transcript and exhibits. Rather, that provision uses the permissive " may" in reference to use of trial transcripts and exhibits, if the penalty is determined by a different jury, then states that " [a]ny other information relevant to such mitigating or aggravating factors may be presented," subject to a weighing of probative value against potential prejudice. Id. Thus, I believe that I have the discretion under this provision to allow the prosecution to present evidence supporting the " statutory aggravating factors" properly before the new jury in the form of live testimony and exhibits, and I will do so in this case. Therefore, the jury will not conduct its weighing with only " empty labels" for " statutory aggravating factors," and the prosecution will not be unfairly prejudiced.

In this case, the obvious exception to use of evidence from the original trial or live testimony is that any evidence of " substantial planning and premeditation" relating to any of the CCE murders other than the murder of Terry DeGeus in Count 10 will not be admissible for the purpose of reopening the consideration of that " statutory aggravating factor" as to those other murders. Admitting trial evidence, or any other evidence, of " substantial planning and premeditation" for that purpose would be unfairly prejudicial, where that " statutory aggravating factor" is not properly at issue as to those Counts in light of the standing " eligibility phase" verdicts. Id.

b. Factors that can be challenged

Even after her epiphany concerning the scope of the " penalty retrial," Johnson continues to challenge the assertion in the Third Notice Of Intent of " statutory aggravating factors" based on " substantial planning and premeditation" and " heinous, cruel, or depraved manner" as to any Counts, even though they were found by the original jury as to some Counts, on the grounds that the victims were killed by a co-conspirator, not by her, and that those factors are duplicative, vague, and supported by insufficient evidence. Whether Johnson can now assert these challenges is an unsettled preliminary question, where the original jury's " eligibility phase" verdicts were not challenged in Johnson's § 2255 Motion; were not a basis for any § 2255 relief; and are not subject to reconsideration on a " penalty retrial" only because I have concluded that the original jury's " eligibility phase" verdicts still stand, but not because there is any preclusive effect to the original jury's rejection of any " statutory aggravating factors" as to any Counts.

I believe that Johnson is now attempting to amend an oversight by asserting arguments of error— particularly legal error— in the " eligibility phase" that she should have asserted in her § 2255 Motion, but did not. See Rule 2(b)(1) of the Rules Governing Section 2255 Proceedings for the United States District Courts (stating that a § 2255 motion must " specify all the grounds for relief available to the moving party" ). Indeed, her belated challenges to the " statutory aggravating factors" amount to an impermissible " second or successive" § 2255 Motion for which Johnson has not received authorization from the Circuit Court of Appeals. See 28 U.S.C. § 2255(h) (declaring that a successive § 2255 motion is not permitted unless the motion is certified by a panel of the appellate court to contain " newly discovered evidence" or " a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" ); see also United States v. Hamilton, 604 F.3d 572, 574 (8th Cir.2010) (at resentencing as § 2255 relief, the defendant forfeited a

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challenge that he failed to raise, but easily could have, in his first § 2255 Motion). Therefore, I will not consider those untimely and procedurally defaulted challenges now.

C. Penalties

1. Penalties vacated

Johnson also admits in her Reply that she has belatedly recognized that, as the prosecution argued, my ruling granting her relief on her § 2255 Motion vacated not only her death sentences on Counts 7 through 10, charging the CCE murders of Lori Duncan, Kandi Duncan, Amber Duncan, and Terry DeGeus, respectively, but also her sentence of life imprisonment without possibility of parole on Count 6, charging the CCE murder of Greg Nicholson. Johnson is correct, as was the prosecution, in so reading my ruling on Johnson's § 2255 Motion. See Johnson, 860 F.Supp.2d at 920 (" [T]he Amended Judgment (docket no. 777) in Case No. CR 01-3046-MWB, imposing a sentence of life imprisonment on Count 6 and sentences of death on Counts 7, 8, 9, and 10, on Johnson, is vacated." ). Thus, the " penalty retrial" was intended to involve determination of the appropriate penalty on all five of Johnson's convictions for CCE murder.

2. Possibility of a death sentence on Count 6

Because I vacated the penalties for all five of Johnson's CCE murder convictions, I must address the parties' dispute about what penalties are now available on each Count in the " penalty retrial." That analysis begins with the possibility of a death sentence on Count 6, the only Count on which the original jury did not recommend a death sentence.

a. Arguments of the parties

Johnson argues, in her opening brief, that even if I vacated her life sentence for the CCE murder of Greg Nicholson in Count 6, a new jury cannot now sentence her to death, because the original jury found that a death sentence was not appropriate on that Count. Somewhat more specifically, she argues that the " prior jury unanimously rejected the death penalty for this count and the Court sentenced Ms. Johnson to life imprisonment on this Count" and that " [t]he government knows, or should know, that double jeopardy principles would preclude the government from again seeking the death penalty for Count 6." Johnson's Brief In Support Of Challenge To Third Notice Of Intent (Opening Brief) at 6-7. The prosecution counters that, because I vacated the sentence on this Count, as well as on the Counts on which the original jury sentenced Johnson to death, the new jury may properly decide whether or not to sentence her to death on this Count, just as it may do so on the other Counts on which death sentences were vacated. Johnson does not reiterate her argument that she cannot be sentenced to death on Count 6 in her Reply.

b. Controlling authority

Johnson cites two Supreme Court cases in support of her contention that she cannot now be sentenced to death on Count 6, Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), and Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). The Supreme Court's decision in Sattazahn explains the significance of its decision in Bullington and its determination of the double-jeopardy issue in the case before it, as follows:

The Double Jeopardy Clause of the Fifth Amendment commands that " [n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." Under this Clause, once a defendant is placed in jeopardy for an offense, and jeopardy terminates with respect to that offense, the defendant

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may neither be tried nor punished a second time for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Where, as here, a defendant is convicted of murder and sentenced to life imprisonment, but appeals the conviction and succeeds in having it set aside, we have held that jeopardy has not terminated, so that the life sentence imposed in connection with the initial conviction raises no double-jeopardy bar to a death sentence on retrial. Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919).
In Stroud, the only offense at issue was that of murder, and the sentence was imposed by a judge who did not have to make any further findings in order to impose the death penalty. Id., at 18, 40 S.Ct. 50. In Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), however, we held that the Double Jeopardy Clause does apply to capital-sentencing proceedings where such proceedings " have the hallmarks of the trial on guilt or innocence." Id., at 439, 101 S.Ct. 1852. We identified several aspects of Missouri's sentencing proceeding that resembled a trial, including the requirement that the prosecution prove certain statutorily defined facts beyond a reasonable doubt to support a sentence of death. Id., at 438, 101 S.Ct. 1852. Such a procedure, we explained, " explicitly requires the jury to determine whether the prosecution has ‘ proved its case.’ " Id., at 444, 101 S.Ct. 1852. Since, we concluded, a sentence of life imprisonment signifies that " ‘ the jury has already acquitted the defendant of whatever was necessary to impose the death sentence,’ " the Double Jeopardy Clause bars a State from seeking the death penalty on retrial. Id., at 445, 101 S.Ct. 1852 (quoting State ex rel. Westfall v. Mason, 594 S.W.2d 908, 922 (Mo.1980) (Bardgett, C.J., dissenting)).
We were, however, careful to emphasize that it is not the mere imposition of a life sentence that raises a double-jeopardy bar. We discussed Stroud, a case in which a defendant who had been convicted of first-degree murder and sentenced to life imprisonment obtained a reversal of his conviction and a new trial when the Solicitor General confessed error. In Stroud, the Court unanimously held that the Double Jeopardy Clause did not bar imposition of the death penalty at the new trial. 251 U.S. at 17-18, 40 S.Ct. 50. What distinguished Bullington from Stroud, we said, was the fact that in Stroud " there was no separate sentencing proceeding at which the prosecution was required to prove— beyond a reasonable doubt or otherwise— additional facts in order to justify the particular sentence." Bullington, 451 U.S. at 439, 101 S.Ct. 1852. We made clear that an " acquittal" at a trial-like sentencing phase, rather than the mere imposition of a life sentence, is required to give rise to double-jeopardy protections. Id., at 446 101 S.Ct. 1852.
Later decisions refined Bullington's rationale....

Sattazahn, 537 U.S. at 106-07, 123 S.Ct. 732 (emphasis added). In Sattazahn, the Court ultimately concluded that there was no double-jeopardy bar to renewed consideration of a death sentence, when the defendant's first jury deadlocked at his sentencing proceeding, and the trial court prescribed a sentence of life imprisonment pursuant to Pennsylvania law. Id. at 109-10, 123 S.Ct. 732. The Court concluded that the defendant could not establish that either the jury or the court " acquitted" him of the death sentence during his first capital-sentencing proceeding, because the deadlock was not a determination based on findings sufficient to establish legal entitlement to a life sentence. Id.

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c. Analysis

Neither Sattazahn nor Bullington ultimately supports Johnson's argument. This is so, notwithstanding that this case is like Bullington in one sense: There was a trial— like sentencing proceeding— indeed, sentencing phases of the trial— at which the prosecution was required to prove beyond a reasonable doubt additional facts— the " statutory aggravating factors" to make Johnson " eligible" for the death penalty and the existence of any other " non-statutory aggravating factors" — in order to justify a death sentence. Id. at 106-07, 123 S.Ct. 732. Nevertheless, in the " eligibility phase," the verdict on Count 6 on which the jury unanimously agreed was a finding, beyond a reasonable doubt, that " statutory aggravating factors" existed and that Johnson was, consequently, " eligible" for the death penalty on that Count, as on the other Counts. See " Eligibility Phase" Verdict Form (docket no. 545) (indicating that, as to Count 6, charging the CCE murder of Greg Nicholson, the jurors unanimously found, beyond a reasonable doubt, the " gateway aggravating factor" concerning " intent" defined in former § 848(n)(1)(C), the " statutory aggravating factor" defined in former § 848(n)(12) (" heinous, cruel, or depraved" ), and that Johnson was ...


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