United States of America v. Darryl Lamont Johnson

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1327
United States of America,
Plaintiff-Appellee,
v.
Darryl Lamont Johnson,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 CR 379--Suzanne B. Conlon, Judge.
Argued June 28, 2000--Decided August 3, 2000
Before Posner, Easterbrook, and Manion, Circuit
Judges.
Posner, Circuit Judge. The defendant, a high-
ranking official of the Gangster Disciples, a
large Chicago street gang whose activities are
described in our recent opinion in United States
v. Jackson, 207 F.3d 910 (7th Cir. 2000), was
convicted of having ordered the murder of (1) a
person who was assisting in a federal criminal
investigation and (2) that person and one other
in furtherance of a continuing criminal
enterprise, and was sentenced to death. 18 U.S.C.
sec.sec. 924(i), 1121(a); 21 U.S.C. sec. 848(e).
The victims were gang members who had been
arrested but who had then been released pending
their trials and who the defendant feared were
working with the government to catch him. He does
not deny having committed the two murders; his
appeal primarily challenges the conduct of the
sentencing hearing. He does, however, raise one
point about the conduct of the trial itself--that
his right to represent himself was infringed--and
we begin there.
Two weeks before the trial began, the defendant
filed a pro se motion captioned "Defendants
Motion to Proceed Pro-Se." In it he argued that
his lawyers’ representation of him was so
deficient that it violated his right to effective
assistance of counsel. But rather than asking for
the appointment of new counsel, the motion

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concluded: "Petitioner knows absolutely nothing
about the law. But petitioner feels strongly that
as his life is on the line, he can do more for
his defense than his attorney’s have so far." It
is unlikely that his statement about knowing
nothing about the law is false modesty. The
defendant is not an educated person, and his IQ
is only 74.
The motion was never ruled on. Apparently it had
gotten lost in the shuffle, United States v.
Taglia, 922 F.2d 413, 416 (7th Cir. 1991), for
the judge stated at a post-trial hearing that she
did not remember having seen it and that she
would have remembered it if she had seen it,
given the gravity and novelty of the case--this
was only the second federal death penalty trial
in the Northern District of Illinois since the
reinstatement of the federal death penalty, and
the first to result in a death sentence. The
defendant did not renew the motion. His lawyers
were unaware of and never mentioned it. He made a
number of pro se motions during the course of the
trial and in none did he express any
dissatisfaction with his lawyers or a desire to
represent himself.
Although a defendant has an absolute right to
defend himself against a criminal charge, however
grave, unless he is mentally incompetent to
decide to do so, Godinez v. Moran, 509 U.S. 389,
396-400 (1993); Davis v. Greer, 13 F.3d 1134,
1138 (7th Cir. 1994), the right can be waived
either expressly or by implication. There are two
types of implied waiver. One, the only one that
can properly be called "waiver," is where an
intention to relinquish the right, although not
expressed, can be inferred. The other, properly
called "forfeiture" rather than "waiver" in
recognition that waiver is canonically defined as
an intentional relinquishment of a right, Johnson
v. Zerbst, 304 U.S. 458, 464 (1938), is where the
right is taken away from its holder as a penalty
for failure to assert it in a clear and timely
manner. It is not always clear when a case is one
of actually implied waiver or one of forfeiture.
The "waiver" of the right of self-representation
illustrates the problem. When as in the usual
case the defendant is represented by a lawyer,
the fact of representation is taken to be the
defendant’s waiver of his right to represent
himself, since "representation by counsel and
self-representation are mutually exclusive
entitlements," Cain v. Peters, 972 F.2d 748, 750
(7th Cir. 1992), so that "assertion of one
constitutes a de facto waiver of the other."
United States v. Singleton, 107 F.3d 1091, 1096
(4th Cir. 1997). "Defendants forfeit self-
representation by remaining silent at critical
junctures before or during trial." Cain v.

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Peters, supra, 972 F.2d at 750. See also Munkus
v. Furlong, 170 F.3d 980, 983-84 (10th Cir.
1999). Failure to assert the right of self-
representation waives it without regard to the
intentions of the defendant in not asserting it.
Among the grounds (catalogued in id. at 984) for
forfeiture of the right is delay in asserting it.
United States v. Oakey, 853 F.2d 551, 553 (7th
Cir. 1988). This case was more than a year old,
and on the verge of trial, when the defendant,
who until then had been represented by counsel,
filed his motion. But because a motion for self-
representation is timely if made before the jury
is empaneled, United States v. Akers, 215 F.3d
1089, 1097 (10th Cir. 2000); United States v.
Walker, 142 F.3d 103, 108 (2d Cir. 1998), unless
made for the purpose of delaying or disrupting
the trial, Moore v. Calderon, 108 F.3d 261, 264
(9th Cir. 1997), which is not argued, we set the
question of timeliness to one side and with it
the issue of forfeiture of the defendant’s right
to represent himself. What this is is a case of
implicit waiver in the strict, the intentional
sense. The defendant did not want to represent
himself, though he didn’t say so in so many
words. The purpose of the motion, it is apparent,
was to express in the most dramatic possible
fashion his current dissatisfaction with his
lawyers. No even marginally rational person who
knew absolutely nothing about the law would want
to defend himself against a capital charge
without a lawyer’s assistance. The defendant’s
fit of dissatisfaction with his lawyers soon
passed. He neither moved to have them replaced
nor renewed his motion to be permitted to
represent himself. His appellate counsel, a
specialist in defending death-penalty cases, has
not pointed to any conduct by the defendant’s
trial lawyers that might have impelled the
defendant to think himself better able than they
to defend the case. The only plausible inference
from the defendant’s conduct is that he
acquiesced in the denial by judicial inaction of
his motion and thereby deliberately relinquished
his right of self-representation. Cain v. Peters,
supra, 972 F.2d at 750; Wilson v. Walker, 204
F.3d 33, 37-39 (2d Cir. 2000) (per curiam); Brown
v. Wainwright, 665 F.2d 607, 610-11 (5th Cir.
1982) (en banc); United States v. Montgomery, 529
F.2d 1404, 1406 (10th Cir. 1976).
We add that as he has made no representation
that if we order a new trial he will persist in
his desire to represent himself, his claim that
his right of self-representation was infringed
may be moot, as well as having no merit for the
reasons just indicated. For if as we expect he
would be represented by lawyers at any new trial,
he would not have vindicated the right of self-

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representation upon which he premises his appeal
from the denial of that right. The point is not
that at a subsequent trial he would be estopped
to invoke his right to counsel, an argument
rejected in the only cases to have considered the
issue. United States v. McKinley, 58 F.3d 1475,
1483 (10th Cir. 1995); Johnstone v. Kelly, 812
F.2d 821 (2d Cir. 1987) (per curiam). The point
is rather that if he wants on remand exactly what
he had in his first trial, namely representation
by competent lawyers, it is difficult to
understand what he lost by the denial of his
motion: he had at the first trial what he wants
at the second.
We turn to the sentencing issues. One of the
jurors who participated in the deliberations that
resulted in the defendant’s being found guilty
failed to show up for the sentencing hearing and
was immediately replaced by one of the
alternates, who had sat through the trial but had
not participated in the jury deliberations. The
judge made no effort to find out why the juror
who was replaced had not shown up, but it is a
sound practice immediately to replace a no-show
juror, as authorized by Fed. R. Crim P. 24(c);
see United States v. Peters, 617 F.2d 503, 505
(7th Cir. 1980) (per curiam); United States v.
Gay, 967 F.2d 322, 324-25 (9th Cir. 1992); United
States v. Rodriguez, 573 F.2d 330, 332 (5th Cir.
1978); United States v. Domenech, 476 F.2d 1229,
1232 (2d Cir. 1973), out of consideration for the
remaining jurors and in order to remind them of
the seriousness of their duty.
The defendant’s lawyer made no objection at
trial to dropping the tardy juror, or to the fact
that under the then Fed. R. Crim. P. 24(c)
(1998), the alternate juror should have been
discharged when the jury retired to consider the
defendant’s guilt, United States v. Patterson, 23
F.3d 1239, 1252 (7th Cir. 1994); United States v.
Josefik, 753 F.2d 585, 587 (7th Cir. 1985);
United States v. Webster, 162 F.3d 308, 347 (5th
Cir. 1998), or--the argument he now presses most
vigorously on us--that the participation of the
alternate in the sentencing deliberations
violated 18 U.S.C. sec. 3593(b)(1). That section
provides that a federal death-penalty sentencing
hearing is to be conducted "before the jury that
determined the defendant’s guilt," with certain
exceptions, as where the defendant waived his
right to a jury trial or the jury that determined
his guilt has already been discharged. sec.
3593(b)(2). The defendant argues that the rights
conferred by this provision and by Rule 24(c) are
ones his lawyer could not waive for him, and so
the failure to object at trial to their denial
should be disregarded.

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Certain rights are personal to the criminal
defendant. See, e.g., Fed. R. Crim. P. 11(c)(6)
("Before accepting a plea of guilty . . . the
court must address the defendant personally in
open court and inform the defendant of, and
determine that the defendant understands . . .
the terms of any provision in a plea agreement
waiving the right to appeal or to collaterally
attack the sentence"); Jones v. Barnes, 463 U.S.
745, 751 (1983) ("the accused has the ultimate
authority to make certain fundamental decisions
regarding the case, as to whether to plead
guilty, waive a jury, testify in his or her own
behalf, or take an appeal"); United States v.
Shukri, 207 F.3d 412, 416 (7th Cir. 2000); Sexton
v. French, 163 F.3d 874, 885 (4th Cir. 1998). But
rights that have a mainly tactical significance
and require legal training to appreciate and
weigh are for the defendant’s lawyer to assert or
to waive as the lawyer sees fit, e.g., United
States v. Boyd, 86 F.3d 719, 723 (7th Cir. 1996);
United States v. Washington, 198 F.3d 721 (8th
Cir. 1999); United States v. Plitman, 194 F.3d
59, 63 (2d Cir. 1999); see generally Wayne R.
LaFave, Jerold H. Israel & Nancy J. King,
Criminal Procedure sec. 11.6(a), pp. 598-603 (2d
ed. 1999), though subject of course to eventual
judicial second-guessing should the defendant
claim that the lawyer made a tactical blunder so
grave as to fall below the minimum level of
professionally competent representation.
A highly pertinent example is jury selection.
United States v. Boyd, supra. For what we have
here is an alleged right to shape the composition
of the jury. And so if there is a right to insist
that should one of the jurors who deliberated on
guilt drop out before the sentencing hearing an
entire new jury be impaneled for sentencing, it
is a right that falls within the domain of
tactics rather than that of basic rights. This
conclusion is compelled by common sense as well
as by the decision in Boyd. Bearing in mind that
it takes only one juror to nix a death sentence,
a lawyer who senses that one or more of the
jurors who found his client guilty nevertheless
seems sufficiently simpatico not to vote for
death might prefer to retain the original panel
with the addition of one of the alternates than
to take his chances with a completely new panel.
The judge is not required to voir dire the
defendant to make sure the latter agrees with the
lawyer’s tactical decision. That would actually
handicap most criminal defendants by inviting
them to make tactical decisions that most of them
are incompetent to make.
In any event we do not think that the procedure
that was employed violates the statute. The
statute makes no provision for the situation that

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occurred here, leaving it to the good sense of
the judges to deal with. We find guidance to the
proper resolution in the 1999 amendment to Rule
24 of the Federal Rules of Criminal Procedure,
which, altering the previous practice (to which
we made reference earlier), allows the trial
judge to replace a regular juror with an
alternate during deliberations, which must then
recommence. Fed. R. Crim. P. 24(c)(3). In other
words, the fact that the alternate missed some of
the deliberations is no longer regarded as a
fatal objection, or indeed as any objection, to
his participating in the jury’s decision. Compare
United States v. Josefik, supra, 753 F.2d at 587.
The analogy to the procedure employed here is
close. The deliberations that eventuated in the
sentence of death were in two stages, a guilt
stage and a sentencing stage. The alternate
missed the first stage but participated in the
second. True, the entire deliberations did not
recommence; but the issues of guilt and of
punishment are sufficiently distinct that the
alternate didn’t have to hear the deliberations
on the former issue in order to be able to
participate meaningfully in the deliberations on
the latter issue. He had sat through the entire
trial, which is the important thing.
The defendant argues that the alternate might
fear he had "missed" something in the part of the
deliberations that he had not been party to. But
that is equally true in a Rule 24(c)(3)
situation, since recommencing the deliberations
would not wipe out the original jurors’ memories
of whatever discussion had preceded the
alternate’s joining them. As someone not
committed to the defendant’s guilt, never having
voted on the question of guilt, the alternate
added at the sentencing stage might actually have
a greater inclination to lenity than the jurors
whom he was joining.
The next issue is whether the defendant was
unfairly surprised by false testimony allegedly
presented by the government on rebuttal at the
sentencing hearing. To decide to impose
(technically, "recommend," but the recommendation
is binding, 28 U.S.C. sec. 3594) the death
penalty, the jury must decide that the
aggravating factors, that is, factors beyond the
murder itself that warrant imposing the ultimate
penalty on this defendant, sufficiently outweigh
any mitigating factors to justify the imposition.
sec. 3593(e). There is a list of aggravating
factors in section 3592(c) (for murder) but the
list is stated to be nonexhaustive. Evidence of
an aggravating or mitigating factor need not be
admissible under the rules of evidence. sec.
3593(c).

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The government alleged as a nonstatutory
aggravating factor in this case "future
dangerousness." The government pointed out that
gang leaders have been known (the boss of the
Gangster Disciples, Larry Hoover, notoriously) to
continue to direct the gang’s affairs from prison
either by telephone or through visitors, and that
the defendant himself, when in jail awaiting
trial, had threatened his codefendant. In
response the defendant called to the stand a
psychologist who had toured the federal prison in
Florence, Colorado, which is the maximum-security
prison in the federal system, the successor to
Alcatraz and Marion. Department of Justice,
"Release Preparation Program," 61 Fed. Reg.
38042-02, 38043 (Jul. 22, 1996); Mark Johnson,
"Colorado Facility is Pacesetter of Newest
’Supermax’ Prisons," Houston Chronicle, June 20,
1999, p. 8. He testified about the security
arrangements in the prison’s control unit, where
prisoners are kept essentially in solitary
confinement. He assured the jury that if it
recommended that the defendant be sentenced to
life in prison rather than to death, the
defendant would no longer be a threat to anyone,
since he could be sentenced to spend the rest of
his life in the control unit at Florence.
In rebuttal the government put on a federal
prison warden, formerly an assistant warden at
Florence, to testify about Florence and about the
policies of the federal Bureau of Prisons. To the
extent that these policies are prescribed or
codified in statutes or regulations, as distinct
from being informal policies, this testimony was
improper, though the defendant makes no issue of
its admissibility and so any objection is waived.
Witnesses testify about fact, not law. When a
legal proposition is relevant to the jury’s
consideration, the proper procedure is for the
judge to instruct the jury on the proposition.
E.g., Bammerlin v. Navistar Int’l Transportation
Corp., 30 F.3d 898, 900 (7th Cir. 1994); Harbor
Ins. Co. v. Continental Bank Corp., 922 F.2d 357,
366 (7th Cir. 1990); Nieves-Villanueva v. Soto-
Rivera, 133 F.3d 92, 99 (1st Cir. 1997);
Molecular Technology Corp. v. Valentine, 925 F.2d
910, 919 (6th Cir. 1991). If the Bureau of
Prisons is forbidden by law to confine a prisoner
in a control unit for his entire life on the
basis of evidence presented at his trial, that is
something for the judge to tell the jury, not for
a witness to testify to.
Much of what the warden testified to was factual
in character, however, for example that Florence
has a limited capacity and its control unit can
accommodate only 68 inmates, that most murderers
and most gang leaders in federal prisons are not
at Florence, let alone in Florence’s control

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unit, that most prisoners in Florence came there
after misbehaving at other facilities rather than
directly from being sentenced, and that even
prisoners in the control unit can have visitors
and can make one 15-minute telephone call a
month. He also testified that "it is not
permissible, by the Bureau of Prisons policy, to
keep an inmate in that status [i.e., in a control
unit] indefinitely."
It is unclear whether he meant a purely informal
policy or was testifying to his understanding of
some legal restriction. But in fact there is a
legal restriction. Regulations by the Bureau of
Prisons, to which the Attorney General has
delegated her plenary authority over the
management of federal prisons, see 18 U.S.C.
sec.sec. 4001(b), 4042, require federal prison
wardens to consider six factors in deciding
whether to place an inmate in a control unit. All
six relate to the inmate’s behavior in prison,
such as possession of a weapon in the prison, 28
C.F.R. sec. 541.41(b)(3), or causing injury to
other people in the prison. sec. 541.41(b)(1).
The warden may consider a seventh factor, the
nature of the inmate’s offense of conviction, but
only "in combination with other factor(s) as
described in paragraph (b)." sec. 541.41(b)(7).
"An inmate may not be considered [for confinement
in a control unit] solely on [the basis of] the
nature of the crime which resulted in that
inmate’s incarceration." Id.
If the Attorney General or the head of a federal
law enforcement or intelligence agency determines
"that there is a substantial risk that a
prisoner’s communications or contacts with
persons could result in death or serious bodily
injury to persons," the warden can be authorized
to take "special administrative measures" that
"may include housing the inmate in administrative
detention and/or limiting certain privileges,
including, but not limited to, correspondence,
visiting, interviews with representatives of the
news media, and use of the telephone, as is
reasonably necessary to protect persons against
the risk of acts of violence or terrorism." sec.
501.3(a). These restrictions may, however, be
imposed only in 120-day increments; and each
time, before they can be reimposed, the warden
must conduct the risk determination afresh. sec.
501.3(c).
The limitations in these regulations imply that
the Bureau of Prisons could not assign a prisoner
directly upon his admission to the federal prison
system to spend the rest of his life in the
control unit without the possibility of
reconsideration. The regulation requiring the
bureau to review an inmate’s control unit status

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"at least once every 60 to 90 days . . . to
determine the inmate’s readiness for release from
the [Control] Unit," 28 C.F.R. sec. 541.49(d),
points in the same direction.
The facts to which the warden testified and the
law that he may or may not have been alluding to
point to the same conclusion, that there can be
no assurance that if the defendant were sentenced
to life in prison he could not commit further
serious crimes. The defendant calls the warden’s
testimony "false" and argues that since it came
in on rebuttal he didn’t have a chance to meet it
and so was unfairly surprised. If true (and if
the evidence was deemed prejudicial), this would
presumably entitle him to a new sentencing
hearing, just as, had the falsity neither been
discovered nor discoverable until after the
hearing had ended, he could have sought a new
hearing on the basis of newly discovered
evidence. See, e.g., United States v. Austin, 103
F.3d 606, 609 (7th Cir. 1997); United States v.
Reed, 986 F.2d 191, 192-93 (7th Cir. 1993);
United States v. Sinclair, 109 F.3d 1527, 1531-32
(10th Cir. 1997); United States v. Moore, 54 F.3d
92, 99 (2d Cir. 1995). But the warden’s
testimony, though it did not track the
regulations exactly, was not false. The
impression that he conveyed of practice and legal
policy was correct.
We know from cases in this court involving
murders by prisoners in the control units of
federal prisons, see United States v. Fountain,
768 F.2d 790, modified, 777 F.2d 345 (7th Cir.
1985) (per curiam); United States v. Silverstein,
732 F.2d 1338 (7th Cir. 1984); United States v.
Fountain, 642 F.2d 1083 (7th Cir. 1981); cf.
Shoats v. Horn, 213 F.3d 140, 141 (3d Cir. 2000);
Echols v. Sullivan, 521 F.2d 206 (5th Cir. 1975)
(per curiam), that such units cannot be made
totally secure. And we know that anyone who has
access to a telephone or is permitted to receive
visitors may be able to transmit a lethal message
in code. We also know that nothing in federal law
authorizes a judge to sentence a prisoner to life
in the control unit. Quite apart from the fact
that "a sentencing court has no authority to
order that a convicted defendant be confined in a
particular facility, much less placed in a
particular treatment program," United States v.
Williams, 65 F.3d 301, 307 (2d Cir. 1995), a
prison control unit is an internal disciplinary
mechanism that is not intended or designed for
lifetime commitment. The Bureau of Prisons could
not, therefore, commit a prisoner to the control
unit for life, refusing to consider circumstances
that might render his joining the open population
of the prison harmless, such as extreme old age
or the dissolution of the gang with which he had

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been affiliated. "Of course, administrative
segregation may not be used as a pretext for
indefinite confinement of an inmate" to a
segregation unit (i.e., a control unit). Hewitt
v. Helms, 459 U.S. 460, 477 n. 9 (1983); cf. Bono
v. Saxbe, 620 F.2d 609, 614 (7th Cir. 1980); In
re Long Term Administrative Segregation of
Inmates Designated as Five Percenters, 174 F.3d
464, 472 (4th Cir. 1999); United States v.
Felipe, 148 F.3d 101, 111 (2d Cir. 1998).
A prison’s control unit is not intended as a
punishment for the crime that got the prisoner
into prison in the first place, like a sentence
of imprisonment at hard labor. Its purpose rather
is to deter and prevent violations of prison
disciplinary rules and to protect prisoners,
guards, and in some cases people outside the
prison, or the society at large, against
dangerous conduct by the prisoner. See 28 C.F.R.
sec. 541.40(a) ("in an effort to maintain a safe
and orderly environment within its institutions,
the Bureau of Prisons operates control unit
programs intended to place into a separate unit
those inmates who are unable to function in a
less restrictive environment without being a
threat to others or to the orderly operation of
the institution"). If, no matter what the nature
of the activities that got him into prison in the
first place, the prisoner poses no danger to
anyone that would justify putting him into or
keeping him in a control unit, such confinement
is, as the regulations we cited earlier make
clear, unauthorized.
Against this the defendant cites recent cases in
which, he claims, federal judges have sentenced
criminal defendants to be confined in a control
unit. United States v. Felipe, No. S16 94 CR. 395
JSM, 1997 WL 220302 (S.D.N.Y. Apr. 29, 1997),
aff’d in relevant respect, 148 F.3d 101, 109-11
(2d Cir. 1998); United States v. Yousef, S12 93
CR. 180 (S.D.N.Y. Jan. 8, 1998) (sentencing
transcript); United States v. Jones, No. 96-458,
97-0355 (D. Md. 1998). Only Felipe involved a
judicial order, however, and the order didn’t
purport to sentence the defendant to the control
unit for life. The judge reserved the right
"hopefully to adjust the conditions, if a change
of circumstances occurs with the passage of
time"--which he soon did. Benjamin Weiser, "Judge
Gives OK For New Member of Prison Rec Club,"
Plain Dealer (Cleveland), March 13, 1999, p. A1.
(To our astonishment, the modification includes,
if the newspaper is to be believed, express
authorization for Felipe to consort with two of
the most notorious inmates in American prisons
today, Timothy McVeigh and Theodore Kaczynski.)
The judge in the Felipe case found his authority

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for sending the defendant to the control unit in
18 U.S.C. sec. 3582(d). That statute authorizes
the sentencing judge to "include as a part of the
sentence" of imprisonment for certain crimes,
including some of the noncapital drug-related
offenses of which our defendant was convicted and
that we have not discussed because there is no
challenge to the judgment regarding them, "an
order that requires that the defendant not
associate or communicate with a specified person,
other than his attorney, upon a showing of
probable cause to believe that association or
communication with such person is for the purpose
of enabling the defendant to control, manage,
direct, finance, or otherwise participate in an
illegal enterprise." That is a far cry from a
sentence to life imprisonment in a control unit,
as is the parallel Bureau of Prisons regulation
that we cited earlier. The statute requires the
government to be able to name a specific person
that it has probable cause to believe will
associate or communicate with the defendant for
illegal purposes--though the Second Circuit in
Felipe stretched the statute to permit the
sentencing judge to cut off the defendant from
contact with everyone in the world except
designated family members, 148 F.3d at 110. And
if the government does make the required showing,
the only consequence is that the defendant will
not be permitted to associate or communicate with
that person. It is doubtful whether the statute
authorizes indefinite confinement in the control
unit, as distinct from a limitation on visits,
phone calls, or association with specified other
inmates, though this we need not decide. All
other objections to the defendant’s effort to
rely on Felipe to one side, he did not argue in
the district court that he could be sentenced
under section 3582(d).
The warden also testified that a member of the
Aryan Brotherhood, the most notorious of U.S.
prison gangs, had while imprisoned at Florence
managed to convey an order to members of the gang
at another prison to kill two inmates of that
prison, and that the order had been carried out.
The defendant objects, and the government
concedes, that this was hearsay evidence; but as
we noted earlier, the federal death-penalty
statute does not require that evidence of
aggravating and mitigating factors be admissible
under the rules of evidence, only that its
probative value not be outweighed by the danger
of its confusing, misleading, or prejudicing the
jury. 18 U.S.C. sec. 3593(c). The balancing is
committed to the discretion of the district
judge, United States v. Hall, 152 F.3d 381, 397
(5th Cir. 1998), not here abused. The incident
involving the Aryan Brotherhood murders, which is
consistent with previous conduct by that infamous

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gang, see, e.g., United States v. McKinney, 954
F.2d 471, 472-74, 478-79 (7th Cir. 1992); Gometz
v. Henman, 807 F.2d 113 (7th Cir. 1986); United
States v. Fountain, supra; United States v.
Mills, 704 F.2d 1553, 1555 (11th Cir. 1983), came
to the warden’s attention through official
channels and concerned a matter of transcendent
professional interest to a prison official. He
was in a good position to form a judgment of the
reliability of this information, which went
directly to the issue of the ability of the
federal prison system to defang the murderers in
its custody.
The defendant next objects under the Brady rule
to the government’s failure to turn over
"evidence" that inmates in the prison in which
the Aryan Brotherhood hits occurred believed that
the deaths of the inmates in question had other
causes. This evidence, limited as it was to
rumors that sweep prisons when any untoward event
occurs, was so valueless that its exclusion from
the trial could not be considered material.
United States v. Villarreal, 963 F.2d 725, 730
(5th Cir. 1992); Hopkinson v. Shillinger, 866
F.2d 1185, 1213, reheard en banc on other
grounds, 888 F.2d 1286 (10th Cir. 1989).
We add as a detail that while the defendant was
of course entitled to counter the government’s
evidence that he would be a continued menace to
society while in prison, that being evidence
offered to establish an aggravating factor, 18
U.S.C. sec. 3593(c); cf. Gardner v. Florida, 430
U.S. 349, 362 (1977), he should not have been
permitted to present to the jury, as he was,
evidence of the existence of maximum-security
federal prisons decked out with control units, in
order to establish a mitigating factor. A
mitigating factor is a factor arguing against
sentencing this defendant to death; it is not an
argument against the death penalty in general.
See Penry v. Lynaugh, 492 U.S. 302, 328 (1989);
Eddings v. Oklahoma, 455 U.S. 104, 110 (1982);
Lockett v. Ohio, 438 U.S. 586, 604 n. 12 (1978)
(plurality opinion). The argument that life in
prison without parole, especially if it is spent
in the prison’s control unit and thus in an
approximation to solitary confinement,
sufficiently achieves the objectives aimed at by
the death penalty to make the latter otiose is an
argument addressed to legislatures, not to a
jury. This is apparent from the fact that the
list of mitigating factors in the federal death-
penalty statute does not include the harshness or
ugliness or (some would say) the immorality of
the death penalty, but only factors specific to
the defendant. See 18 U.S.C. sec. 3592(a), and in
particular subsection (a)(8) ("other factors in
the defendant’s background, record, or character

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or any other circumstances of the offense that
mitigate against imposition of the death
sentence") (emphasis added).
The argument is also illogical, as it amounts to
saying that because this defendant is so
dangerous, he does not deserve to be sentenced to
death, since his dangerousness will assure his
secure confinement. And its illogic shows that it
is really an argument against the death penalty,
period, since if this defendant should be spared
because he is unusually dangerous, surely less
dangerous murderers should not be executed
either, even though, because they are less
dangerous, they are less likely to be confined
securely.
The last issue involves the verdict form. The
statute requires the jury to include as part of
the verdict special findings with respect to any
aggravating factors that it determines to exist.
But it also provides that "any member of the jury
who finds the existence of a mitigating factor
may consider such factor established." 18 U.S.C.
sec. 3593(d). Whether the juror must also be
permitted to include such a finding (that is, his
finding that a mitigating factor exists) in the
verdict, or in some separate written statement of
his own, may be doubted--has in fact been
rejected by the only two courts to consider the
issue, United States v. Paul, No. 98-3497, 2000
WL 822099, *13 n. 6 (8th Cir. June 27, 2000);
United States v. Hall, supra, 152 F.3d at 413--
but is conceded by the government on this appeal.
The jury was given two separate verdict forms,
one for each of the two murders that the
defendant had committed. Each form lists more
than 20 possible mitigating factors, most of
which are equally applicable to both murders. For
example, both forms ask whether any jurors think
that "as a young child, Darryl Lamont Johnson
witnessed his father’s constant and serious
physical abuse of his mother." On one of the
forms, zero jurors thought this; on another, two
did. There are a number of similar discrepancies.
The defendant either did or did not witness his
father’s abuse of his mother; the answer has
nothing to do with which murder the jury was
considering.
The general rule, however, the wisdom of which
this case substantiates, is that inconsistent
findings in a jury verdict do not invalidate the
verdict. E.g., United States v. Powell, 469 U.S.
57, 64-69 (1984); United States v. Akram, 152
F.3d 698, 701 (7th Cir. 1998); United States v.
Sims, 144 F.3d 1082 (7th Cir. 1998). A jury that
inconsistently convicts the defendant of one
offense and acquits him of another is as likely

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to have erred in acquitting him of the one as in
convicting him of the other. "Inconsistent
verdicts therefore present a situation where
’error,’ in the sense that the jury has not
followed the court’s instructions, most certainly
has occurred, but it is unclear whose ox has been
gored. Given this uncertainty, and the fact that
the Government is precluded from challenging the
acquittal, it is hardly satisfactory to allow the
defendant to receive a new trial on the
conviction as a matter of course." United States
v. Powell, supra, 469 U.S. at 65. The principle
is applicable here, since the government cannot
appeal the jury’s refusal to impose the death
penalty. 18 U.S.C. sec. 3595(a).
Of course, if the inconsistencies were such as
to indicate that the verdict was a product of
irrationality, it would have to be set aside. The
death penalty statute is explicit about this.
"Whenever the court of appeals finds that the
sentence of death was imposed under the influence
of passion, prejudice, or any other arbitrary
factor . . . the court shall remand the case for
reconsideration under section 3593 or imposition
of a sentence other than death." 18 U.S.C. sec.
3595(c)(2)(A) (emphasis added); United States v.
Paul, supra, 2000 WL 822099, *11; United States
v. Webster, supra, 162 F.3d at 354. But that is
not a necessary or even the most likely inference
in this case. It is more likely that several
jurors were of two minds about, say, the relation
between the defendant’s father and mother, and
their irresolution is reflected in their
inconsistent answers. But of course jurors
disagree among themselves; that is nothing new.
They are required to agree about their verdict,
not about every fact. What is important here is
that every juror who found more mitigating
factors present with respect to one of the
murders than with respect to the other
nevertheless voted that the aggravating factors
taken as a whole outweighed the mitigating
factors as a whole with regard to each murder. In
other words, there is no reason to suspect that
any juror was in doubt about the bottom line,
though he may have wavered with respect to just
how many mitigating factors were present. To put
it differently: if a juror couldn’t make up his
mind whether the defendant had proved 2
mitigating factors or 10 mitigating factors, but
was clear in his mind that even in the latter
event the aggravating factors outweighed them,
there would be no basis for thinking that he had
voted irrationally. Wainwright v. Lockhart, 80
F.3d 1226, 1231-32 (8th Cir. 1996).
The verdict form was, however, confusing. It
invited inconsistent findings, by listing the
mitigating factors twice. For future reference in

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a multiple-murder capital case, we suggest that
the jury be asked about the presence of any
mitigating factors that are common to both
murders on a separate form rather than on each
verdict form. This is assuming that it is proper
to make such inquiry of the jury, an issue we
leave open because the government waived any
objection to the procedure.
Affirmed.

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