131739P.pdf   08/25/2014  United States  v.  Angela Johnson
   U.S. Court of Appeals Case No:  13-1739
   U.S. District Court for the Northern District of Iowa - Ft. Dodge   
   [PUBLISHED] [Wollman, Author, with Bye and Smith, Circuit Judges] 
   Criminal case. For the court's prior opinion in Johnson's case, see United 
   States v. Johnson, 495 F.3d 951 (8th Cir. 2007). The court has 
   jurisdiction to decide this interlocutory appeal under 18 U.S.C. Sec. 
   3731. Where the district court vacated defendant's death sentence because 
   of ineffective assistance of counsel at sentencing and limited the 
   sentencing rehearing to the issue of what penalty should be imposed for 
   each count, the court erred in disallowing the government from presenting 
   evidence to prove an aggravating factor that the original jury did not 
   unanimously find; the procedure adopted by the district court would 
   violate 21 U.S.C. Sec. 848(j) and (k) in that the new jury would not 
   decide whether the government has proved beyond a reasonable doubt the 
   statutory factors set forth in the notice of intent to seek the death 
   penalty; on remand, the new jury must determine for itself whether the 
   government has proved the statutory aggravating factors alleged in the 
   notice of intent and if it finds the defendant is eligible for the death 
   penalty, it must weigh the statutory aggravating factors it found beyond a 
   reasonable doubt, together with any non-statutory aggravating factors it 
   finds beyond a reasonable doubt, against any mitigating factors any juror 
   finds. Judge Bye, dissenting.