U.S. v. Johnson

• Decision Date: 30 July 2007
• Docket Number: No. 06-1001.,06-1001.
• Citation: 495 F.3d 951
• Parties: UNITED STATES of America, Appellee, v. Angela Jane JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

495 F.3d 951

UNITED STATES of America, Appellee, v. Angela Jane JOHNSON, Appellant.

No. 06-1001.

United States Court of Appeals, Eighth Circuit.

Submitted: February 14, 2007.

Filed: July 30, 2007.

Counsel who presented argument on behalf of the appellant was Dean Stowers of Des Moines, IA. Also appearing on appellant's brief was Patrick J. Berrigan of Kansas City, MO.

Counsel who presented argument on behalf of the appellee was Charles J. Williams, AUSA, Cedar Rapids, IA.

Before WOLLMAN, BYE, and SMITH, Circuit Judges.

WOLLMAN, Circuit Judge.

A federal jury found Angela Johnson guilty of aiding and abetting the murder of five individuals while working in furtherance of a continuing criminal enterprise (CCE), violations of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2, and five counts of aiding and abetting the killing of these individuals while engaging in a drug conspiracy, also in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. The jury voted to impose the death penalty for four of these murders and voted to impose a sentence of life in prison for the fifth murder, resulting in a total of eight death sentences and two life sentences. Following her convictions, Johnson filed a motion in arrest of judgment, a motion for acquittal, and a motion for a new trial — all of which were denied by the district court¹ in a comprehensive memorandum opinion. See United States v. Johnson, 403 F.Supp.2d 721 (N.D.Iowa 2005). Johnson appeals from her convictions and her sentences, raising 28 issues.² We remand the case so that the district court may vacate five of her ten convictions. In all other respects, we affirm.

I.

As set forth in greater detail below, this case revolves around five murders. In July of 1993, Johnson's boyfriend, Dustin Honken, with Johnson's help, abducted and killed Greg Nicholson, Lori Duncan (Nicholson's girlfriend), and Duncan's two young daughters, Amber and Kandi. Nicholson, who had sold drugs for Honken, was the central witness in a drug case against Honken. The Duncans had the misfortune of being present when Honken and Johnson arrived at their home to deal with Nicholson. Months later, Honken, again with Johnson's assistance, murdered a second potential witness against Honken, Johnson's former boyfriend, Terry DeGeus.

In 1992, Honken started manufacturing methamphetamine with his friend Tim Cutkomp in Arizona. Honken's brother, Jeff Honken, financed the operation. Honken distributed the methamphetamine to Greg Nicholson and Terry DeGeus, who were both drug dealers in Mason City, Iowa. In early 1993, during one of Honken's trips to Mason City, DeGeus sent Johnson, who was his girlfriend at the time, to deliver either drug proceeds or methamphetamine to Honken. Johnson told Honken that because DeGeus was using too much of the methamphetamine for his own personal use, Honken should deal directly with Johnson instead. Johnson and Honken began a romantic relationship and within six months, Johnson became pregnant with Honken's child. In late February or early March of 1993, Cutkomp moved to Iowa, but continued participating in Honken's drug enterprise.

In March 1993, police began investigating Nicholson and executed a search warrant for his residence, which led to the discovery of a large amount of methamphetamine and money. Nicholson agreed to cooperate with law enforcement and told agents that Honken had supplied him with several pounds of methamphetamine over a period of 10-11 months, for which he paid Honken a total of approximately $100,000. On March 21, 1993, Nicholson met with Honken to deliver drug proceeds. During their conversation, which was monitored by police, they discussed past and future deliveries of methamphetamine. That day, police arrested Honken and Cutkomp. In Honken's pocket, officers found a note listing money owed to Honken by two individuals referred to as "G-man" and "T-man." A receipt for the purchase of chemicals was found in Cutkomp's pocket. After Honken was arrested, Jeff Honken disposed of items from Honken's drug lab that Honken had kept in one of Jeff Honken's storage sheds.

In April 1993, a federal grand jury indicted Honken for conspiracy to distribute methamphetamine. Honken was released on bond. Honken informed the court that he intended to plead guilty, and a plea hearing was scheduled for July 30, 1993. During June and July of 1993, Honken and Johnson began searching for Nicholson. On the evenings they looked for Nicholson, Johnson would ask her friend, Christi Gaubatz, to babysit Johnson's daughter. Honken and Johnson borrowed Gaubatz's car on these occasions so that they would not be spotted by Nicholson. On July 7, 1993, Johnson purchased a semi-automatic 9 mm assault pistol at a pawn shop about an hour's drive from her home.³ The last time Johnson asked Gaubatz to babysit so that she and Honken could look for Nicholson was July 24, 1993. That evening, Nicholson, Nicholson's girlfriend, Lori Duncan, and Lori Duncan's two children, Kandi and Amber, were murdered.

Johnson later recounted the details of the murders to various witnesses. The following recitation is drawn from these accounts. Johnson knocked on the door of the Duncans' home and asked if she could look at their telephone book. Johnson was carrying a cosmetics demonstration bag and claimed that she had an appointment to give a demonstration, but was uncertain of the address. She secured entry into the house, with Honken apparently right behind her. There was testimony that once the door was opened, Honken and Johnson "rushed" the occupants. While Johnson and Honken were in the house, one or both of them videotaped Nicholson making statements exculpating Honken. At some point, Johnson went upstairs with Kandi and Amber and had them pack up some of their things — either to persuade the girls that they were going on a trip or to convince any subsequent visitors to the house that they had done so. Honken and Johnson bound and gagged the adults with materials that either Honken or Johnson had brought to the house and drove the victims to a wooded area. Honken took the two adults out of the car and shot them in the head while Johnson waited in the car with the children. The children were then taken out of the car and shot as well. All four were placed in a single grave that had been dug earlier. As set forth below, their bodies were eventually discovered years later.

After the murders, Honken provided his attorney with the videotape in which Nicholson exculpated Honken. When Honken appeared for his plea hearing, which took place five days after the murders, he declined to plead guilty. His attorney told the prosecutor that the case was not as strong as the government had believed. The tape was eventually returned to Honken and never seen again.

With Nicholson missing, the government's attention turned to DeGeus. On October 27, 1993, several individuals were subpoenaed, including Johnson and DeGeus's friend, Aaron Ryerson. Ryerson was questioned about possible connections between Honken and DeGeus. After Ryerson spoke with DeGeus, DeGeus called Johnson and told her what Ryerson had said to him about his time before the grand jury. Nine days later, on November 5, DeGeus dropped his daughter off at his parents' house and told them that he was going to meet with Johnson. By this time, DeGeus suspected that something may have happened to Nicholson, and he was concerned that he might share Nicholson's fate. Although DeGeus knew that Johnson was involved with Honken, he apparently agreed to meet with her because he still had strong feelings for her. DeGeus was murdered that night. The evidence indicates that DeGeus was either shot by Honken and then beaten with a baseball bat or beaten first and then shot.⁴

Following DeGeus's disappearance, Johnson gave conflicting reports to police and others about the night he disappeared, telling some individuals that she had not seen him that night and telling others that she had seen him, but that he had left after they had spoken. During the fall of 1993, Gaubatz found a bag containing a large black handgun, which had a silencer attached to it, in her closet. Upset by this discovery, Gaubatz called Johnson, who retrieved the weapon.

In March 1995, the federal drug charges against Honken were dismissed. In 1995, Honken enlisted the assistance of Dan Cobeen to help with the methamphetamine operation, but before Cobeen was allowed to participate, Honken took him to see Johnson for her approval. Unbeknownst to Honken or Johnson, however, Cobeen was cooperating with law enforcement and provided the authorities with information about the methamphetamine operation.

On February 7, 1996, before Honken and his associates were able to produce methamphetamine, law enforcement agents executed a search warrant for Honken's home, whereupon they seized items related to the production of methamphetamine. Two months later, the government brought drug charges against Honken and Cutkomp. After Honken's arrest, Honken and Johnson discussed killing witnesses, including Cobeen and law enforcement agents. Cutkomp testified that Honken was reluctant to involve Johnson in any efforts to kill Cobeen because she was a "hot head and just wanted to go do — just do it." Cutkomp was also worried about Johnson pushing Honken to follow through with the plans. Honken pled guilty to drug charges in 1997. Around the time of the sentencing hearing, Johnson called Jeff Honken and yelled, "[I]f Dustin wasn't going to be able to see his kids she was going to make sure [Jeff Honken wasn't] going to be able to see [his]."

Johnson was charged with the murders in July 2000 and taken to the Benton County, Iowa, Jail, where she met another inmate, Robert McNeese. McNeese convinced Johnson that he was connected to the mob and that he could find an inmate already serving a life sentence who would confess to the murders. He told her that all he needed was information about the crimes so...