U.S. v. Honken
| Decision Date | 21 July 2003 |
| Docket Number | No. CR 01-3047-MWB.,CR 01-3047-MWB. |
| Parties | UNITED STATES of America, Plaintiff, v. Dustin Lee HONKEN, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Patrick J. Reinert, Charles J. Williams, U.S. Attorney's Office. Cedar Rapids, IA, for plaintiff.
Alfredo G. Parrish, Parrish Kruidenier Moss Dunn Montgomery Boles & Gribble, LLP, Charles Rogers, Kansas City, MO, Leon F. Spies, Mellon & Spies, Iowa City, IA, for defendant.
No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.
U.S. CONST., amend. V, cl. 2.
The defendant in this criminal prosecution asserts that his prior conviction on a drug conspiracy charge, in violation of 21 U.S.C. § 846, bars, on "former jeopardy" grounds, his prosecution on the present charges of murder while engaging in a drug-trafficking conspiracy ("conspiracy murder"), in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2, and murder while engaging in or working in furtherance of a continuing criminal enterprise ("CCE murder"), also in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. The government, however, contends that Congress has expressly authorized successive prosecutions and cumulative punishments for drug conspiracy and conspiracy murder or CCE murder. The court must decide whether prosecution of the defendant on the present murder charges violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
On April 11, 1996, Dustin Lee Honken and a co-defendant, Timothy Cutkomp, were indicted in a previous case ("the 1996 case") on three drug-trafficking charges including the following conspiracy charge:
Between about 1993 and February 7, 1996, in the Northern District of Iowa and elsewhere, DUSTIN LEE HONKEN and TIMOTHY CUTKOMP, did knowingly and unlawfully combine, conspire, confederate and agree with persons known and unknown to the Grand Jury to commit the following offenses against the United States:
1. Distribution of 1000 grams or more [of] a mixture or substance containing a detectable amount of methamphetamine and 100 grams or more of pure methamphetamine, a schedule II Controlled Substance, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(A);
2. To knowingly manufacture 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine and 100 grams or more of pure methamphetamine, a Schedule II Controlled Substance, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(A);
3. To knowingly attempt to manufacture 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine and 100 grams or more of pure methamphetamine, a Schedule II Controlled Substance, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(A);
This in violation of Title 21, United States Code, Sections 846, 841(a)(1) and 841(b)(1)(A).
Indictment in Case No. CR 96-3004-MWB (N.D.Iowa).1 A superseding indictment filed later in the 1996 case restated this conspiracy charge and Honken eventually pleaded guilty to it in July 1997. See, e.g., United States v. Honken, 184 F.3d 961, 963 (8th Cir.), cert. denied, 528 U.S. 1056, 120 S.Ct. 602, 145 L.Ed.2d 500 (1999).
The present prosecution began with the filing of a seventeen-count indictment against Honken on August 30, 2001, which brought a variety of charges arising from Honken's alleged murder and solicitation of murder of witnesses to his alleged drug-trafficking and other criminal activity. Among the charges in the original indictment in this case are "conspiracy murder" charges in Counts 8 through 12 and "CCE murder" charges in Counts 13 through 17. On August 23, 2003, a Superseding Indictment was handed down in this case, which amended those "conspiracy murder" and "CCE murder" charges. It is these charges that are the target of Honken's present motion to dismiss.
As they presently stand, Counts 8 through 12 charge "conspiracy murder" of Gregory Nicholson, Lori Duncan (Nicholson's girlfriend), Amber Duncan and Kandi Duncan (Lori Duncan's daughters, age 6 and 10, respectively), and Terry DeGeus, respectively, as follows:
On or about July 25, 1993 [November 5, 1993, as to DeGeus], in the Northern District of Iowa, DUSTIN LEE HONKEN, while knowingly engaging in an offense punishable under Title 21, United States Code, Sections 846 and 841(b)(1)(A), that is between 1992 and 1998 DUSTIN LEE HONKEN did knowingly and unlawfully conspired [sic] to: 1) manufacture 100 grams or more of pure methamphetamine and 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine and 2) distribute 100 grams or more of pure methamphetamine and 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine, intentionally killed and counseled, commanded, induced, procured, and caused and aided and abetted the intentional killing of [the named individual], and such killing resulted.
All in violation of Title 21, United States Code, Section 848(e)(1)(A) and Title 18, United States Code, Section 2.
Superseding Indictment, Counts 8 through 12.
Counts 13 through 17 of the Superseding Indictment charge "CCE murder" of the same five individuals, respectively, as follows:
On or about July 25, 1993 [November 5, 1993, as to DeGeus], in the Northern District of Iowa, DUSTIN LEE HONKEN, while engaging in and working in furtherance of a continuing criminal enterprise in violation of Title 21, United States Code, Section 848(c), intentionally killed and counseled, commanded, induced, procured, and caused and aided and abetted the intentional killing of [the named individual], and such killing resulted.
The continuing criminal enterprise DUSTIN LEE HONKEN engaged in and worked in furtherance of was undertaken by DUSTIN LEE HONKEN in concert with five or more other persons including, but not limited to, Timothy Cutkomp, Gregory Nicholson, Terry DeGeus, Angela Jane Johnson, and Jeffery Honken. In the organization, DUSTIN LEE HONKEN occupied a position of organizer, supervisor or other position of management. The criminal enterprise involved the commission of a continuing series of narcotics violations under Title 21, United States Code, Section 801 et. [sic] seq. occurring between 1992 and 2000, specifically:
[18 numbered paragraphs omitted].
From this continuing criminal enterprise, DUSTIN HONKEN and others derived substantial income and resources.
All in violation of Title 21, United States Code, Section 848(e)(1)(A) and Title 18, United States Code, Section 2.
Superseding Indictment, Counts 13 through 17.
This matter is presently set for trial beginning on March 1, 2004. However, Honken contends that this prosecution cannot go forward on Counts 8 through 17 without violating his rights under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
On June 6, 2003, Honken moved to dismiss Counts 8 through 17 of the Superseding Indictment in this case on the grounds of "former jeopardy." After an extension of time to do so, the government resisted Honken's motion to dismiss on July 8, 2003. Neither party requested oral arguments on the motion and the court has not found oral arguments to be necessary to its disposition of the motion. Therefore, Honken's motion to dismiss is now fully submitted on the parties' written submissions.
Honken's "former jeopardy" argument is relatively straight...
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U.S. v. Honken
...Counts 8 through 17 on the basis of "former jeopardy" in light of his prior conviction in the 1996 case. See United States v. Honken, 271 F.Supp.2d 1097 (N.D.Iowa 2003). Therefore, all of the charges in the Superseding Indictment are currently set for trial beginning on August 16, 2. Pre-tr......
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U.S. v. Hall
...least cumulative with any sentences for engaging in a continuing criminal enterprise as prohibited by § 848. United States v. Honken, 271 F.Supp.2d 1097, 1110-11 (N.D.Iowa 2003). But it is less clear whether Congress intended cumulative punishment for murder while engaging in "an offense pu......
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U.S. v. Honken
...Honken's pre-trial motion to dismiss the capital charges on the basis of former jeopardy in a published ruling, United States v. Honken, 271 F.Supp.2d 1097 (N.D.Iowa 2003), citing three alternative grounds, all of which led the court to the conclusion that the prior "conspiracy" charge was ......
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U.S. v. Johnson
...that to prove "CCE murder," the government must also prove the existence of the underlying CCE. See, e.g., United States v. Honken, 271 F.Supp.2d 1097, 1116 (N.D.Iowa 2003). Johnson is also correct that, to prove the existence of the underlying CCE, the government was required to prove that......