                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 13-1739
                          ___________________________

                               United States of America

                         lllllllllllllllllllll Plaintiff - Appellant

                                             v.

                                    Angela Johnson

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                      Appeal from United States District Court
                    for the Northern District of Iowa - Ft. Dodge
                                   ____________

                             Submitted: January 16, 2014
                               Filed: August 25, 2014
                                   ____________

Before WOLLMAN, BYE, and SMITH, Circuit Judges.
                          ____________

WOLLMAN, Circuit Judge.

       Angela Johnson was convicted of five counts of aiding and abetting murder in
furtherance of a continuing criminal enterprise, in violation of 21 U.S.C.
§ 848(e)(1)(A) and 18 U.S.C. § 2. She was sentenced to death for four of the murders
and to life imprisonment without possibility of parole for the fifth. The district court
vacated the sentences after it determined that Johnson’s trial counsel had rendered
ineffective assistance during the sentencing hearing.
        The district court limited the scope of the sentencing rehearing. It ordered that
the original jury’s decision that Johnson was eligible for the death penalty would
stand and that the new jury would decide only the penalty to be imposed for each
count of conviction. In doing so, the district court disallowed the government from
presenting evidence to prove an aggravating factor that the original jury did not
unanimously find. The government filed this interlocutory appeal from the district
court’s order, arguing that 21 U.S.C. § 848 requires a full sentencing rehearing—that
is, that the statute requires the new jury to decide whether Johnson is eligible for the
death penalty and whether the death penalty should be imposed. Relatedly, the
government argues that the district court erred in excluding evidence. We vacate the
district court’s order in part and remand the case for further proceedings.

                                    I. Background

                               A. Statutory Background

       Under the Anti-Drug Abuse Act (ADAA), the government may seek the death
penalty for the offense of murder in furtherance of a continuing criminal enterprise.
See 21 U.S.C. § 848(e)(1)(A), § 848(h). The government must file notice of its intent
to do so and set forth the aggravating factors that it will try to prove as the basis for
the death penalty. § 848(h). If the jury returns a guilty verdict, the district court must
“conduct a separate sentencing hearing to determine the punishment to be imposed.”
§ 848(i)(1). If redetermination of a sentence under the ADAA is necessary, the
sentencing rehearing must be conducted “before a jury impaneled for the purpose of
the hearing[.]” § 848(i)(1)(B)(iv). We have held that a district court may bifurcate
a capital sentencing hearing into an “eligibility phase” and a “[penalty-]selection
phase.” United States v. Bolden, 545 F.3d 609, 618-19 (8th Cir. 2008) (applying the
Federal Death Penalty Act, 18 U.S.C. § 3593).




                                           -2-
        The ADAA sets forth what the jury must consider and decide during the
sentencing hearing. “The jury . . . shall consider all information received during the
hearing. It shall return special findings identifying any aggravating factors set forth
in subsection (n) of this section, found to exist.” § 848(k). The defendant is eligible
for the death penalty only if the jury unanimously finds that the government has
proved at least one of the aggravating factors set forth in § 848(n)(1) and at least one
of the aggravating factors set forth in § 848(n)(2)-(12). § 848(k) (setting forth the
findings the jury must return and requiring that “[a] finding with respect to any
aggravating factor must be unanimous”); see § 848(j) (requiring the government to
prove beyond a reasonable doubt the existence of any aggravating factor). If the jury
finds the defendant eligible, it then decides whether the death penalty should be
imposed. In making that decision, the jury considers whether the government proved
any of the non-statutory aggravating factors that were alleged in the notice of intent
and whether the defendant proved any mitigating factors. See § 848(j) (requiring the
defendant to prove by a preponderance of the evidence the existence of any mitigating
factor); § 848(k) (providing that a finding with respect to a mitigating factor may be
made by one or more of the members of the jury, who can then weigh that factor).
The jury must then weigh the statutory and non-statutory aggravating factors that it
unanimously found to exist, along with any mitigating factors that any juror found to
exist, to determine the defendant’s sentence.1




      1
        The sentencing procedures set forth in 21 U.S.C. § 848 (2000) were repealed
after Johnson was convicted and sentenced. See USA PATRIOT Improvement and
Reauthorization Act of 2005, Pub. L. No. 109-177, § 221, 120 Stat. 192, 231 (2006)
(striking 21 U.S.C. § 848(g)-(p)). The district court has ruled that Johnson’s
sentencing rehearing “will proceed to a ‘penalty retrial,’ pursuant to the provisions
of former § 848(g)-(r)[.]” D. Ct. Order of Oct. 25, 2012, at 6. The parties do not
challenge that ruling on appeal, and this opinion applies the provisions of § 848 that
were codified in 2000 and later repealed.

                                          -3-
                       B. Factual and Procedural Background

      In July 1993, Johnson helped Dustin Honken abduct and kill Greg Nicholson,
Lori Duncan, and Duncan’s young daughters, Kandi and Amber. A few months later,
she helped Honken kill Terry DeGeus. Both Nicholson and DeGeus had distributed
methamphetamine that they had purchased from Honken and were killed after police
began investigating their involvement in the drug enterprise led by Honken. Johnson
was charged with five counts of aiding and abetting murder in furtherance of a
continuing criminal enterprise, among other crimes.

        The government filed its notice of intent to seek the death penalty, setting forth
the statutory and non-statutory aggravating factors that it would seek to prove at the
sentencing hearing. After the jury found Johnson guilty of the murder charges, the
district court held a separate sentencing hearing to determine the punishment to be
imposed.2 The district court bifurcated the sentencing hearing, so that the jury was
first required to decide whether Johnson was eligible for the death penalty and then,
if it found her eligible, to decide whether she should be sentenced to death or life
imprisonment.

       During the eligibility phase of the sentencing hearing, the jury heard only
argument from counsel; no evidence was presented. The jury found that Johnson was
eligible for the death penalty on each count of conviction because the government had
proved certain statutory aggravating factors. Specifically, the jury found that Johnson


      2
       Johnson also was convicted of five counts of aiding and abetting murder while
engaging in a drug conspiracy. Those convictions were vacated as multiplicitous of
the convictions for aiding and abetting murder in furtherance of a continuing criminal
enterprise. See United States v. Johnson, 495 F.3d 951, 980-81 (8th Cir. 2007)
(remanding with instructions to vacate the multiplicitous convictions and sentences);
D. Ct. Order of June 11, 2009 (vacating the convictions and sentences for conspiracy
murder).

                                           -4-
had “intentionally engaged in conduct intending that [each victim] be killed or that
lethal force be employed against the victim, which resulted in the death of the
victim.” See § 848(n)(1)(c). With respect to Nicholson, Lori Duncan, and DeGeus,
the jury also found that Johnson had committed each offense in an especially heinous,
cruel, or depraved manner in that each offense involved torture and serious physical
abuse to the victim. See § 848(n)(12). The jury determined that the children, Kandi
and Amber, were particularly vulnerable due to their young ages. See § 848(n)(9).
Although the government had alleged that Johnson committed each offense after
substantial planning and premeditation, the jury unanimously found that factor only
as to the murder of DeGeus. See § 848(n)(8).

       After the jury returned its eligibility verdict, the government presented
evidence to support the non-statutory aggravating factors that it had alleged, and
Johnson presented mitigating evidence. The jury was instructed to weigh the
statutory aggravating factors that it had found in the eligibility phase, together with
any of the non-statutory aggravating factors and mitigating factors that it found in the
penalty-selection phase, to determine whether to impose a sentence of death or life
imprisonment on each count. The jury returned a sentence of life imprisonment for
the murder of Nicholson and sentences of death for the murders of Lori Duncan,
Kandi Duncan, Amber Duncan, and DeGeus.

       On direct appeal, we affirmed the five counts of conviction for aiding and
abetting murder in furtherance of a continuing criminal enterprise and the sentences
imposed on those counts. United States v. Johnson, 495 F.3d 951 (8th Cir. 2007).
The United States Supreme Court denied Johnson’s petitions for certiorari and for
rehearing. Johnson v. United States, 555 U.S. 828 (2008) (denying cert.), 555 U.S.
1081 (2008) (denying rehearing).

      After her direct appeal concluded, Johnson moved to vacate, set aside, or
correct her sentence under 28 U.S.C. § 2255. The district court held four evidentiary

                                          -5-
hearings, spanning eighteen days. After considering the witnesses’ testimony,
extensive documentary evidence, and the parties’ briefing and argument, the district
court granted Johnson’s motion in part. The district court concluded that Johnson’s
counsel had failed to investigate and present certain mitigating evidence. The order
gave the government sixty days to request a new sentencing hearing or to withdraw
the notice of intent to seek the death penalty. The district court indicated that if the
notice were withdrawn, it would enter a sentence of life imprisonment without parole.

       The government thereafter requested a new sentencing hearing. It relied upon
the same statutory aggravating factors that were submitted to the original jury during
the eligibility phase of Johnson’s sentencing hearing, including whether Johnson had
substantially planned and premeditated the five murders. As set forth above, the
original jury had returned a unanimous verdict on that factor only as to the murder of
DeGeus.

       Johnson moved to dismiss the substantial planning and premeditation statutory
aggravating factor, among others. She argued that the new jury should be bound by
the original jury’s findings with respect to the statutory aggravating factors, including
the original jury’s finding that the government had not proved beyond a reasonable
doubt that Johnson had substantially planned and premeditated the murders of
Nicholson and the Duncans. Johnson thus argued that the original jury’s
determination that she was eligible for the death penalty should stand and that only
the penalty-selection phase of the sentencing hearing should be retried. The
government responded that § 848 requires one sentencing rehearing, even if the
original sentencing hearing was bifurcated and there was reversible error only in the
penalty-selection phase. The district court rejected the government’s argument:

      [T]he [sentencing rehearing] 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


                                          -6-
      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.

D. Ct. Order of Jan. 16, 2013, at 13-14. Consistent with this limitation, the district
court ruled that it would not admit “any evidence of ‘substantial planning and
premeditation’ relating to any of the [continuing criminal enterprise] murders other
than the murder of Terry DeGeus . . . for the purpose of reopening the consideration
of that ‘statutory aggravating factor’ as to th[e] other murders.” Id. at 21.

      The government appeals from the district court’s order limiting the sentencing
rehearing to the penalty-selection phase and excluding evidence offered to prove that
Johnson substantially planned and premeditated the murders of Nicholson, Lori
Duncan, Kandi Duncan, and Amber Duncan.

                                    II. Jurisdiction

      Johnson argues that we do not have jurisdiction to decide this interlocutory
appeal. Title 18, United States Code, section 3731, allows the government to appeal
from orders suppressing or excluding evidence in certain circumstances:

      An appeal by the United States shall lie to a court of appeals from a
      decision or order of a district court suppressing or excluding
      evidence . . . not made after the defendant has been put in jeopardy and
      before the verdict or finding on an indictment or information, if the
      United States attorney certifies to the district court that the appeal is not
      taken for the purpose of delay and that the evidence is a substantial
      proof of a fact material in the proceeding.

Johnson argues that the district court’s order did not suppress or exclude evidence
because the order indicated that the government would be permitted to introduce the
evidence underlying the substantial planning and premeditation of the murders, so

                                          -7-
long as it was not introduced for the purpose of proving that statutory aggravating
factor as to the murders of Nicholson and the Duncans. Section 3731, however, does
not require that the order suppress or exclude evidence for all purposes. “Such a
construction . . . would contravene not only § 3731’s plain language, but also
Congress’s express desire to allow Government appeals from all pretrial orders
suppressing or excluding evidence in criminal proceedings.” United States v.
Delatorre, 157 F.3d 1205, 1208-09 (10th Cir. 1998) (citing S. Rep. No. 91-1296, at
18 (1970)); see United States v. Wilson, 420 U.S. 332, 337 (1975) (“[T]he legislative
history [of § 3731] makes it clear that Congress intended to remove all statutory
barriers to Government appeals and to allow appeals whenever the Constitution
would permit.”). The district court here entered an order excluding evidence, and
there is no dispute that the remaining requirements of § 3731 have been met. We thus
have jurisdiction to consider the government’s appeal.

                                  III. Discussion

       To determine whether the district court’s exclusion of evidence was proper, we
must first consider whether § 848 permits a partial sentencing rehearing before the
new jury or whether the statute requires the new jury to decide (1) whether the
defendant is eligible for the death penalty and (2) whether the defendant should be
sentenced to death. If the statute requires a full sentencing rehearing, the district
court erred in excluding categorically any evidence offered to prove that Johnson
substantially planned and premeditated the murders of Nicholson and the Duncans.
We review the antecedent question of statutory interpretation de novo. See United
States v. Tebeau, 713 F.3d 955, 959 (8th Cir. 2013) (reviewing de novo the
interpretation and application of a statute); see also Delatorre, 157 F.3d at 1208
(reviewing de novo “the legal questions involved in this appeal”).

      Johnson argues that the district court properly granted partial retrial of the
sentencing hearing. She contends that the district court tailored the sentencing

                                         -8-
rehearing to address the constitutional error in Johnson’s first trial, ineffective
assistance of counsel during the penalty-selection phase of the sentencing hearing.
Because a district court may, as a matter of trial management, bifurcate a sentencing
hearing, see Bolden, 545 F.3d at 618-19, Johnson argues that the district court here
is able to limit the sentencing rehearing to the penalty-selection phase. We disagree.

       The ADAA provides that, in certain circumstances, the jury that determines a
defendant’s sentence may be different from the jury that determined the defendant’s
guilt. See § 848(i)(1)(B)(iii)-(iv). For example, when the original jury has been
discharged for good cause or when a defendant’s original sentence has been vacated
and must be redetermined, the district court must conduct a sentencing hearing
“before a jury impaneled for the purpose of the hearing.” Id. In those cases, the
information presented to the new jury may include transcripts and exhibits from the
trial on the defendant’s guilt. § 848(j). The statute thus contemplates that, in certain
circumstances, two different juries will serve on a capital case—one jury will decide
the defendant’s guilt, and a different jury will decide the defendant’s sentence—and
it provides guidance regarding the information that may be presented to the jury that
will decide the defendant’s sentence.

       In contrast, the ADAA requires that one jury decide a defendant’s sentence.
The statute does not contemplate a capital sentencing procedure that would allow one
jury to determine the defendant’s eligibility for the death sentence and a different jury
to decide the defendant’s punishment. Sections 848(g) through (o) repeatedly and
unambiguously refer to “a jury” or “the jury” and “a hearing” or “the hearing,” and
the sentencing procedures set forth in the ADAA do not permit a capital sentence to
be imposed based on the findings of two different juries made after two separate
sentencing hearings.

      For the jury to complete all the tasks § 848(j) and (k) require, the district court
must conduct a full sentencing rehearing. As § 848(k) provides, the jury must

                                          -9-
consider all information received during the sentencing hearing, return its findings
as to the statutory aggravating factors, and, if necessary, decide the defendant’s
punishment by considering whether the statutory and non-statutory aggravating
factors outweigh any mitigating factors. Section 848(k) also explains that the jury’s
findings with respect to the aggravating factors must be unanimous, but that findings
with respect to mitigating factors need not be. Moreover, different burdens of proof
apply to aggravating and mitigating factors. § 848(j). Accordingly, a jury charged
with determining a defendant’s sentence must consider the evidence, apply the correct
standards, make certain findings, weigh the aggravating and mitigating factors, and
return its verdict. To fulfill these responsibilities, the new jury cannot be bound by
the findings of the original jury.

       The district court’s approach to Johnson’s sentencing rehearing contradicts the
procedure set forth in § 848(j) and (k) in that the new jury would not decide whether
the government has proved beyond a reasonable doubt the statutory aggravating
factors set forth in the notice of intent to seek the death penalty. The new jury would
be ordered to accept the eligibility-phase findings of the original jury. It would be
required to decide Johnson’s sentence by weighing the original jury’s findings on the
statutory aggravating factors with any findings it makes on the non-statutory
aggravating factors and mitigating factors. Because this approach does not follow the
procedures set forth in § 848(j) and (k), it violates § 848(g), which allows the
imposition of the death sentence “only if a hearing is held in accordance with this
section[,]” and § 848(i), which requires the rehearing to be conducted “before a jury
impaneled for the purpose of the hearing.”

       The new jury must determine for itself whether the government has proved the
statutory aggravating factors alleged in the notice of intent to seek death penalty. If
it finds that the defendant is eligible for the death penalty, it must weigh those
statutory aggravating factors it found beyond a reasonable doubt with any non-
statutory aggravating factors it finds beyond a reasonable doubt against any

                                         -10-
mitigating factors any juror finds. The new jury must engage in the entire process of
finding and weighing those factors to determine the defendant’s sentence. We thus
hold that the district court must conduct a full sentencing rehearing.

       Our holding accords with our precedent that a district court may bifurcate a
capital sentencing hearing. See Bolden, 545 F.3d at 618-19. When a district court
exercises its discretion to bifurcate a sentencing hearing, the eligibility phase and
penalty-selection phase together comprise the sentencing hearing prescribed by the
statute. Bifurcation thus does not run afoul of the ADAA’s sentencing procedures.
See id. at 618 (rejecting the government’s argument that bifurcation is statutorily
impermissible and remarking that “the statute contemplates but does not require a
single penalty phase proceeding”). Although a bifurcated hearing is conducted in two
phases, the district court conducts only one sentencing hearing and only one jury
decides whether the defendant is eligible for the death penalty and whether the death
penalty should be imposed.

                                   IV. Conclusion

       We hold that the district court must conduct a full sentencing rehearing and that
it erred in categorically excluding evidence offered to prove that Johnson
substantially planned and premeditated the murders of Nicholson, Lori Duncan,
Kandi Duncan, and Amber Duncan. The case is remanded for proceedings consistent
with this opinion.

BYE, Circuit Judge, dissenting.

      I respectfully dissent.

       The government attempts to present an interlocutory appeal, stemming from
the district court's grant of habeas corpus relief. The district court found Angela

                                         -11-
Johnson received ineffective assistance of counsel only in the final, penalty-selection
phase of her capital trial; therefore, the district court only granted a rehearing of that
phase. Johnson v. United States, 860 F. Supp. 2d 663, 873 (N.D. Iowa 2012).
Pursuant to this relief, the district court ordered evidence excluded as it pertained to
the death-eligibility phase, because the district court would not retry Johnson's
eligibility for the death penalty. The government appeals that order.

        Interlocutory appeals are not generally heard from grants of habeas corpus
relief because there is no final decision until a new sentence has been imposed. See
Andrews v. United States, 373 U.S. 334, 340 (1963). The government, however, asks
us to review its interlocutory appeal on three alternative grounds: (1) the text of the
Criminal Appeals Act, codified at 18 U.S.C. § 3731, (2) the collateral order doctrine,
or (3) by granting a writ of mandamus. I do not find the appeal reviewable under the
first two, and I would not grant a writ of mandamus. Accordingly, I would dismiss
the appeal. Because the majority addresses the merits of the government's appeal, I
will also explain why, assuming arguendo we had jurisdiction, I would affirm.

                                            I

       The government's three asserted bases for jurisdiction do not provide this court
jurisdiction to hear the government's interlocutory appeal.

                                            A

      The majority accepts the government's invitation to find jurisdiction in the text
of the Criminal Appeals Act. This statute expressly contemplates interlocutory
appeals from "a criminal case[.]" 18 U.S.C. § 3731. Here, instead, we are presented
with an interlocutory appeal from a grant of habeas corpus. The Supreme Court has
made clear habeas corpus "is a separate proceeding, independent of the original



                                          -12-
criminal case." Andrews, 373 U.S. at 338. Therefore, the Supreme Court ruled the
"Criminal Appeals Act has no applicability to such a proceeding." Id.

       Sister circuits have concluded Andrews forecloses any appeal stemming from
a grant of habeas corpus until after the inmate has been resentenced. See Sampson
v. United States, 724 F.3d 150, 158 (1st Cir. 2013) (rejecting jurisdiction based on 18
U.S.C. § 3731 because "Andrews is binding on us."); United States v. Stitt, 459 F.3d
483, 488 (4th Cir. 2006) (Williams, J., concurring) ("[T]he purpose of a capital
sentence hearing . . . is to determine the proper punishment to be imposed on a
criminal wrongdoer, not to determine whether a defendant should be convicted of the
charged crime. Accordingly, under Andrews, a district court's order granting a future
capital resentencing hearing . . . is not appealable."); United States v. Hammer, 564
F.3d 628, 634 (3d Cir. 2009) (citing approvingly the concurring opinion in Stitt,
concluding a habeas corpus "proceeding is not final until the prisoner is
resentenced."). I agree with the holdings of these circuits.

       Those cases did not present evidentiary issues, as the majority believes this
case does. The government argues it is appealing the exclusion of evidence. The
evidence, however, was only excluded as it pertained to Johnson's eligibility for the
death penalty and, indeed, may be introduced in the new penalty selection phase. The
government's appeal, therefore, is more properly understood as an appeal of the
habeas corpus relief because the government seeks to change the relief granted by the
district court. For this reason, I cannot ignore the Supreme Court's plain rule: the
Criminal Appeals Act does not apply to a habeas corpus proceeding.

                                          B

       The government also seeks jurisdiction under the collateral order doctrine. For
us to hear an interlocutory appeal "under the collateral order doctrine, the decision
appealed from must satisfy three requirements: (1) it must conclusively determine the

                                         -13-
disputed question; (2) it must resolve an important issue completely separate from the
merits of the action; and (3) the decision must be effectively unreviewable on appeal
from a final judgment." Howard v. Norris, 616 F.3d 799, 802 (8th Cir. 2010) (citing
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 130 (2009)). The Supreme Court
has warned courts to limit appellate review under the collateral order doctrine, lest
the exception "swallow the general rule that a party is entitled to a single appeal, to
be deferred until final judgment has been entered." Mohawk Indus., Inc., 558 U.S.
at 106 (2009) (citation and quotation omitted).

      Because the evidence which the government seeks to introduce relates directly
to Johnson's eligibility for the death penalty, the government's issue on appeal is not
completely separate from the merits. As a result, the government cannot satisfy the
second prong necessary to obtain review under the collateral order doctrine.

                                           C

       Finally, the government asks this court to issue a writ of mandamus,
compelling a reversal of the district court's order in the most extraordinary fashion
our judicial system allows. The writ is "among the most potent weapons in the
judicial arsenal." Will v. United States, 389 U.S. 90, 107 (1967). For a court to grant
this extraordinary relief, the party seeking the writ (1) must "have no other adequate
means to attain the [desired] relief," and (2) "must satisfy the burden of showing [its]
right to issuance of the writ is clear and indisputable." Cheney v. U.S. Dist. Court for
D.C., 542 U.S. 367, 380-81 (2004) (internal citations and quotation marks omitted).
Further, "even if the first two prerequisites have been met, the issuing court, in the
exercise of its discretion, must be satisfied that the writ is appropriate under the
circumstances." Id. at 381.

      Long-standing law indicates "the writ of mandamus may not be made to
perform the office of an appeal." United States v. Judges of U.S. Court of Appeals,

                                         -14-
85 F. 177, 180 (8th Cir. 1898); see also Bath Cnty. v. Amy, 80 U.S. 244, 249 (1871)
("[T]he writ cannot be used to confer a jurisdiction which the Circuit Court would not
have without it."). A writ of mandamus "should not be used as a substitute for
interlocutory appeal. This is especially true in criminal cases." Duffy v. Dier, 465
F.2d 416, 417-18 (8th Cir. 1972) (internal citation omitted).

       Because I have separately concluded we do not have jurisdiction to hear this
interlocutory appeal, and because the government sought alternative jurisdiction in
the writ as a substitute for an interlocutory appeal, I would not grant a writ to create
jurisdiction where there is none. I also believe the writ would be inappropriate in
these circumstances, as I do not find the district court erred in its order.

                                           II

      The majority's ruling also troubles me because, in effect, it vacates an errorless
jury decision. To that end, I will explain why I do not find the district court erred
and, assuming arguendo we had jurisdiction, would affirm.

      In Johnson's original criminal case, the district court bifurcated3 the sentencing
phase to "cure . . . potential unfair prejudice, confusion, and misdirection" relating to
the evidence presented to determine Johnson's eligibility for the death penalty.
United States v. Johnson, 362 F. Supp. 2d 1043, 1110 (N.D. Iowa 2005) aff'd in part,
495 F.3d 951 (8th Cir. 2007).4 We have endorsed such a bifurcation as a

      3
        Because a federal capital case is already bifurcated into a guilt phase and a
penalty phase, some courts have referred to this situation as trifurcation, where there
is (1) a guilt phase, (2) a death-eligibility phase, and (3) a penalty-selection phase.
This appeal does not concern Johnson's guilt; therefore, I use bifurcation to mean the
bifurcation of the sentencing phase.
      4
      On appeal, we noted the sentencing bifurcation, but did not discuss its
appropriateness. Johnson, 495 F.3d at 960.
                                          -15-
discretionary trial management device. United States v. Bolden, 545 F.3d 609, 618
(8th Cir. 2008) (citing approvingly United States v. Fell, 531 F.3d 197, 240 n. 28 (2d
Cir. 2008)). Bifurcating the sentencing phase is done to allay concerns over the
relaxed evidentiary rules governing the jury's determination of eligibility. See United
States v. Jordan, 357 F. Supp. 2d 889, 903-04 (E.D. Va. 2005); see generally Michael
D. Pepson & John N. Sharifi, Two Wrongs Don't Make A Right: Federal Death
Eligibility Determinations and Judicial Trifurcations, 43 Akron L. Rev. 1, 49 (2010).

       In Bolden, we found the district court did not abuse its discretion in denying
a motion to bifurcate the sentencing phase. 545 F.3d at 618. In support of this
conclusion, we commended the district court for "carefully instruct[ing] the jury" to
not consider certain evidence for death-eligibility. Id. at 619. In other words, we
have recognized the evidentiary concerns which prompt some courts, in their
discretion, to bifurcate a capital sentencing hearing. By reversing a grant of habeas
corpus today – one written to maintain the integrity of the original decision to
bifurcate the sentencing hearing – I fear we have made our endorsement of sentencing
bifurcation hollow.

      The government argues the eligibility and selection phases are only properly
understood as a single hearing, a sentencing phase. The statute under which Johnson
was sentenced contemplates separate hearings to determine guilt and sentencing. 21
U.S.C. § 848(i)(1). Though the statute prefers the same jury hear the guilt and
sentencing phases, see 21 U.S.C. § 848(i)(1)(A) (not listing any predicates for using
the same jury), a jury empaneled for the sole purpose of sentencing is allowed if "the
jury which determined the defendant's guilt has been discharged for good cause." 21
U.S.C. § 848(i)(1)(B)(3). There is no dispute the previous jury was discharged for
good cause.

     The government argues the statute's text, however, demands a jury must be
empaneled to hear both the eligibility and selection phases of a sentencing hearing.

                                         -16-
I do not find such a demand in the statute; I do find, however, the possibility of
bringing in a new jury, one bound by the findings of a previous jury. The statute does
not prohibit bifurcation of the sentencing phase, nor does our case law. See Bolden,
545 F.3d at 618. Further, because the statute contemplates separate juries for the
separate phases, I find the statute considers the separate phases – whether two or three
– as distinct.

        In its grant of habeas corpus, the district court found trial counsel was
constitutionally ineffective only in the selection phase of Johnson's capital trial. The
district court then followed the Supreme Court's mandate to "tailor[]" relief "to the
injury suffered from the constitutional violation." United States v. Morrison, 449
U.S. 361, 364 (1981). To that end, the district court ordered a new proceeding to
determine only whether Johnson should be put to death. This new proceeding would
take as res judicata Johnson's guilt and eligibility for the death penalty, as determined
by the jury in phases of the proceedings below which were without error. For this
new proceeding, the government seeks to introduce evidence to prove statutory
aggravating factors. These factors would be determinative in the eligibility phase of
the trial. Because the district court's tailoring did not require eligibility to be retried,
however, the district court ordered that evidence excluded, but only as it pertained to
eligibility. The district court did not exclude the evidence from introduction at the
selection phase. The majority believes this order effectively excluded evidence and
vacates the order, but in so doing remands for a new eligibility and selection phase,
even though Johnson's constitutional rights were not injured before the jury in her
eligibility phase.

      In this eligibility phase, the government needed to prove at least one of the
following statutory aggravating factors: (1) all five murders showed substantial
planning and premeditation, (2) the adult victims suffered substantial abuse, and (3)
the child victims were vulnerable. The jury found Johnson eligible for the death
penalty (1) for substantial planning and premeditation with respect to only one

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murder, (2) because the adult victims suffered substantial abuse, and (3) because the
children were vulnerable victims. With today's opinion, the government gets a
second bite at the apple – a chance to retry Johnson for death eligibility regarding the
substantial planning and premeditation of the other four murders.

                                          III

      The district court in the criminal case permissibly bifurcated the sentencing
hearing and, in so doing, created two distinct phases. After finding a constitutional
injury occurred only in the latter of those two distinct phase, the district court
permissibly tailored habeas corpus relief to only retry the phase in which error
occurred.

      In other words, a jury lawfully has found Johnson eligible for the death penalty.
No errors tainted that jury's decision. A jury then found Johnson deserved the death
penalty, but that decision was tainted by the ineffective assistance of Johnson's trial
counsel. It is only that jury decision we must vacate. This is what the district court
has done. Therefore, assuming we had jurisdiction, I would affirm the district court's
order granting habeas corpus relief.
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