223 F.3d 665 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Darryl Lamont Johnson, Defendant-Appellant.
No. 99-1327
In the  United States Court of Appeals  For the Seventh Circuit
Argued June 28, 2000Decided August 3, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 96 CR 379--Suzanne B. Conlon, Judge.[Copyrighted Material Omitted]
Before Posner, Easterbrook, and Manion, Circuit  Judges.
Posner, Circuit Judge.


1
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.


2
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  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.


3
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.


4
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.  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.


5
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).


6
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-  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.


7
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.


8
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.


9
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.


10
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.


11
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  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.


12
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.


13
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).


14
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.


15
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.


16
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  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."


17
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.


18
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).


19
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  "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.


20
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.


21
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  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).


22
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.


23
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.)


24
The judge in the Felipe case found his authority  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).


25
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  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.


26
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).


27
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  or any other circumstances of the offense that  mitigate against imposition of the death  sentence") (emphasis added).


28
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.


29
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, 217 F.3d 989, 999 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.


30
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.


31
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  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).


32
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, 217 F.3d at 1004-05; 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).


33
The verdict form was, however, confusing. It  invited inconsistent findings, by listing the  mitigating factors twice. For future reference in  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.


34
Affirmed.

