U.S. v. Honken, 05-3871.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation541 F.3d 1146
Docket NumberNo. 05-3871.,05-3871.
PartiesUNITED STATES of America, Appellee, v. Dustin Lee HONKEN, Appellant.
Decision Date12 September 2008

Jean deSales Barrett, argued, Montclair, NJ, Gary E. Brotherton, on the brief, Columbia, MO, Monica Foster, on the brief, Indianapolis, IN, for appellant.

Charles J. Williams, AUSA, argued, Cedar Rapids, IA, for appellee.

Before RILEY, GRUENDER, and SHEPHERD, Circuit Judges.

RILEY, Circuit Judge.

In 1993, after being indicted on federal drug trafficking charges, Dustin Lee Honken (Honken) and his girlfriend, Angela Johnson (Johnson), kidnapped and murdered a federal witness, the witness's girlfriend, and the girlfriend's two young daughters. Honken and Johnson murdered another potential federal witness three months later.

In 2004, a jury convicted Honken on all 17 counts of a superseding indictment: five counts of witness tampering,1 one count of soliciting the murder of a witness,2 one count of conspiracy to tamper with witnesses and to solicit the murder of witnesses,3 five counts of conspiracy to commit murder while engaging in the manufacture and distribution of methamphetamine (drug conspiracy murder),4 and five counts of Continuing Criminal Enterprise (CCE) murder.5 The jury voted to impose the death penalty for the children's murders and life imprisonment for the adults' murders. The district court6 imposed a sentence of death for the children's murders, life imprisonment for the adults' murders, and terms of imprisonment for the remaining counts. Honken raises eleven issues on appeal. We affirm the thorough and well-reasoned judgment of the district court.

I. BACKGROUND
A. 1993 Drug Charges Against Honken

Honken and his best friend, Timothy Cutkomp (Cutkomp), began manufacturing methamphetamine in Arizona in 1992. Honken distributed his methamphetamine to only two dealers, Greg Nicholson (Nicholson) and Terry DeGeus (DeGeus). Both Nicholson and DeGeus were located in the Mason City, Iowa, area. Honken became acquainted with DeGeus's then-girlfriend, Johnson, in 1993, and the two promptly began a romantic relationship. Johnson became pregnant with Honken's child later that year.

In March 1993, law enforcement began investigating Nicholson. After officers searched Nicholson's house, Nicholson decided to cooperate in the investigation. On March 21, 1993, officers arranged a recorded meeting between Nicholson and Honken at Nicholson's home in Iowa, during which the two discussed methamphetamine and Nicholson paid Honken $3,000 for past deliveries. That same day, officers arrested Honken and Cutkomp.

Honken moved from Arizona to Mason City after his arrest. Honken was initially charged with state drug offenses. After Nicholson testified before a federal grand jury in April 1993, the grand jury indicted Honken for conspiracy to manufacture methamphetamine, and the state charges were dismissed in favor of federal charges. Honken notified the court he intended to plead guilty, and a plea hearing was scheduled for July 30, 1993.

B. Disappearance of Nicholson, DeGeus, and the Duncan Family

Honken was released on bond. During June and July 1993, Honken and Johnson searched for Nicholson, often asking Johnson's friend, Christi Gaubatz (Gaubatz), to babysit Johnson's daughter while they searched. On July 7, 1993, Johnson purchased a .9 mm handgun.

Meanwhile, in mid-July 1993, a mutual friend introduced Nicholson to Lori Duncan (Duncan). Duncan was a single, working mother raising her two girls, Kandi (age 10) and Amber (age 6). Nicholson began staying at Duncan's house.

On the night of July 24, 1993, Honken and Johnson again asked Gaubatz to babysit Johnson's daughter and borrowed Gaubatz's car so they could search for Nicholson. Honken and Johnson normally returned about midnight, but on this occasion they did not come home until around five o'clock in the morning. On July 25, 1993, Nicholson, Duncan, Kandi, and Amber suddenly disappeared.

Five days later, on July 30, 1993, Honken appeared for his plea hearing, but declined to plead guilty. Honken told his attorney he heard a rumor Nicholson had skipped town. Honken also provided his attorney with a VHS tape of Nicholson saying Honken was not guilty of the charges against him.

Around August 2, 1993, the government learned Nicholson was missing after warrants were issued for Nicholson's arrest and officers were unsuccessful in locating Nicholson. The government continued its drug investigation against Honken, now turning its attention to Honken's only other dealer, DeGeus. Honken told Cutkomp he was worried about DeGeus testifying against him. Honken believed DeGeus had been subpoenaed to appear before the grand jury.

DeGeus disappeared on November 5, 1993. The night of his disappearance, DeGeus dropped his 10-year-old daughter off at his mother's house and told his mother he was going to meet Johnson, his former girlfriend. DeGeus said he would return shortly to pick up his daughter that evening, but DeGeus never returned.

In the winter of 1993-1994, while cleaning a bedroom closet, Gaubatz discovered a large black handgun with attached silencer in a cosmetics bag belonging to Johnson. Gaubatz called Johnson to demand Johnson remove the gun. Johnson told Gaubatz not to worry about the gun because Honken would take care of it. That winter, Honken went to Cutkomp for assistance destroying a large black pistol. Honken and Cutkomp used a torch to cut and melt the gun into a number of unrecognizable pieces, which they discarded in ditches along a country road.

C. 1996 Drug Charges, Threats Against Witnesses, and Escape Attempt

While the 1993 charges against him were pending, Honken continued his methamphetamine manufacturing efforts. Honken built a complex methamphetamine laboratory and took significant steps toward manufacturing methamphetamine. Because Nicholson and DeGeus could not be found, the court dismissed the 1993 charges against Honken for lack of prosecution.

In the fall of 1995, Honken recruited Dan Cobeen (Cobeen) to help him manufacture methamphetamine. Unbeknownst to Honken, Cobeen went to police and began cooperating. With Cobeen's assistance, police began an undercover investigation, and on February 7, 1996, officers executed a search warrant at Honken's house. Officers seized a methamphetamine laboratory, chemicals, and equipment, as well as paper notes and books on manufacturing drugs and how to bind and gag prisoners. Honken was charged with, inter alia, conspiracy to manufacture methamphetamine from 1992 through February 7, 1996, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A).

While the 1996 charges were pending, Honken plotted to murder Cobeen, and certain police officers and chemists, and to destroy evidence against him. At this point, Cutkomp decided to cooperate with police. Cutkomp wore a wire and recorded numerous hours of conversations in which Honken referenced eliminating witnesses in 1993, and described his plan to evade the current charges by killing witnesses and officers. Based upon these tapes, the court revoked Honken's pretrial release and detained him in the Woodbury County Jail in Sioux City, Iowa. While incarcerated, Honken admitted to other inmates he killed witnesses to avoid earlier charges. Honken went into great detail about the murders. Honken also began planning the murders of Cobeen and Cutkomp, instructing a fellow inmate to kill Cutkomp and providing directions to Cutkomp's house. Together with another inmate, Honken attempted to escape by breaking a hole in the wall of a cell and arranging for Johnson to deliver a hacksaw and rope. Jailers discovered the hole and foiled the escape plot. On June 2, 1997, Honken pled guilty to the drug charges and was ultimately sentenced to 324 months in prison.

D. Johnson's Maps

In 2000, Gaubatz decided to cooperate in the ongoing murder investigation, telling officers about Honken's and Johnson's search for Nicholson, and about Gaubatz's later discovery of the gun in her closet. A federal grand jury indicted Johnson in July 2000, charging her with the murders of Nicholson, the Duncan family, and DeGeus.

At trial Honken stipulated, while in the Benton County Jail, Johnson became acquainted with Robert McNeese (McNeese), a federal prisoner serving a life sentence for an unrelated offense. Johnson and McNeese discussed Johnson's case. As a ruse, McNeese told Johnson she could escape responsibility for the murders if McNeese could arrange to have another inmate who was already serving a life sentence falsely claim responsibility for murdering the five victims. McNeese told Johnson that in order to make the confession believable, the other inmate would need to be able to furnish proof of his involvement by leading authorities to the victims' bodies. Johnson prepared and provided McNeese with maps and notes describing the locations where the five bodies were buried. McNeese turned the maps and notes over to law enforcement.

Using the maps Johnson drew, officers discovered the bodies of Nicholson and the Duncan family, buried in a single hole located in a wooded area outside Mason City. Kandi and Amber each had a single bullet hole in the back of their heads. Nicholson and Duncan were bound, gagged, and shot multiple times, including once in the head. DeGeus's body was found in a field a few miles away, face down in a shallow hole. DeGeus had been shot one or more times, and his skull was severely fragmented, requiring significant reconstruction.

E. Honken's Continuing Threats and Escape Plots

Honken was sent to the United States Penitentiary at Florence, Colorado, where he became convinced he would be charged with the murders. If tried for the murders, Honken planned to call his associates as witnesses in Sioux City, and then overpower and kill the guards and escape. After escaping, Honken intended to murder witnesses, law enforcement officers,...

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