U.S. v. Honken, CR 01-3047-MWB.

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
Citation378 F.Supp.2d 928
Docket NumberNo. CR 01-3047-MWB.,CR 01-3047-MWB.
PartiesUNITED STATES of America, Plaintiff, v. Dustin Lee HONKEN, Defendant.
Decision Date07 June 2004

Page 928

378 F.Supp.2d 928
UNITED STATES of America, Plaintiff,
v.
Dustin Lee HONKEN, Defendant.
No. CR 01-3047-MWB.
United States District Court, N.D. Iowa, Central Division.
June 7, 2004.

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Alfredo G. Parrish, Parrish Kruidenier Moss Dunn Montgomery Boles & Gribble, LLP, Des Moines, IA, for Defendant.

Charles J. Williams, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.

MEMORANDUM OPINION AND ORDER REGARDING GOVERNMENT'S PRE-TRIAL MOTIONS

BENNETT, Chief District Judge.


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 TABLE OF CONTENTS
                 I. INTRODUCTION ..............................................................933
                 A. Background ............................................................933
                 1. The 1993 case .....................................................933
                 2. The 1996 case .....................................................933
                 B. Procedural Background To The Present Case .............................934
                 1. Indictments in the present case ...................................934
                 2. Pre-trial motions .................................................937
                 II. LEGAL ANALYSIS ............................................................938
                 A. Defendant's Admissions ................................................938
                 1. Arguments of the parties ..........................................938
                 2. Analysis ..........................................................940
                 a. Res gestae ....................................................940
                 b. Admission of party opponent ...................................942
                 c. Judicial estoppel .............................................943
                 d. Relevance, prejudice, cumulativeness, and "other crimes" ......945
                 e. Overbreadth ...................................................946
                 3. Summary ...........................................................946
                 B. Admissibility Of Maps .................................................946
                 1. Additional factual background .....................................947
                 2. Arguments of the parties ..........................................947
                 a. Initial arguments .............................................947
                 b. Supplemental arguments ........................................949
                 3. Analysis ..........................................................950
                 a. Procedural default ............................................950
                 b. Crawford v. Washington ........................................951
                 i. Facts and issue .........................................951
                 ii. The meaning of the Confrontation Clause .................951
                 iii. Failings of Roberts v. Ohio .............................951
                 iv. Replacing Roberts with a bright-line rule ...............953
                 c. The effect of Crawford ........................................954
                 i. The meaning of "testimonial." ...........................954
                 ii. Are the maps "testimonial"? .............................956
                 d. The applicable analysis .......................................957
                 i. Co-conspirator statements ...............................958
                 ii. Statements against penal interest .......................961
                 C. Admissibility Of Audio Recordings .....................................963
                 D. Admissibility Of Replica Firearm ......................................964
                 1. The motion and the defendant's procedural default .................964
                 2. Additional factual background .....................................965
                 3. Arguments of the parties ..........................................965
                 4. Analysis ..........................................................965
                 a. Applicable law ................................................965
                 b. Application of the law ........................................968
                III. CONCLUSION ................................................................969
                

In this death penalty case, involving the alleged murder of five witnesses to the defendant's drug-trafficking or other alleged criminal conduct,1 the government has filed a series of pre-trial motions on

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the admissibility of various kinds of evidence. The evidence in question consists of the defendant's admissions during his guilty plea, sentencing, and conviction of drug charges in 1997-98; certain maps made by an alleged co-conspirator showing where the alleged murder victims were buried; certain audio recordings of meetings between the defendant and two cooperating witnesses; and a replica firearm of the type allegedly used and carried by the defendant. The defendant resists admission of at least some of this evidence.

I. INTRODUCTION
A. Background

1. The 1993 case

The background to the government's pre-trial motions in this case begins with a survey of the prior prosecutions of defendant Dustin Lee Honken in this judicial district. Honken was first prosecuted for drug-trafficking offenses in this district in 1993 in Case No. CR 93-3019 ("the 1993 case"). As the Eighth Circuit Court of Appeals explained,

In April 1993, a grand jury in the Northern District of Iowa indicted appellee for conspiracy to distribute methamphetamine. After the disappearance of one or more prospective prosecution witnesses, the government dismissed the indictment.

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). Thus, the first prosecution of Honken in this district did not lead to a conviction.

2. The 1996 case

Honken was again indicted on drug-trafficking charges on April 11, 1996, this time with co-defendant Timothy Cutkomp, in Case No. CR 96-3004-MWB ("the 1996 case"). Count 1 of the Indictment in the 1996 case charged Honken and Cutkomp with conspiracy, between about 1993 and February 7, 1996, to distribute, manufacture, and 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. Indictment in Case No. CR 96-3004-MWB (N.D.Iowa). Count 2 of the original Indictment in the 1996 case charged Honken with possessing and aiding and abetting the possession of listed chemicals, in violation of 21 U.S.C. § 841(d) and 18 U.S.C. § 2, and Count 3 charged possession and aiding and abetting the possession of drug paraphernalia intending to use such paraphernalia to manufacture and attempt to manufacture methamphetamine and listed chemicals, in violation of 21 U.S.C. § 843(a)(6) and 18 U.S.C. § 2, respectively. Id., Counts 2 & 3. A superseding indictment filed later in the 1996 case restated the first three charges and added a fourth charge of attempting to manufacture methamphetamine. See Superseding Indictment in Case No. CR 96-3004-MWB (N.D.Iowa).

Eventually, in 1997, Honken pleaded guilty to the conspiracy charge and the charge of attempting to manufacture methamphetamine, i.e., Counts 1 and 4, and the government dismissed Counts 2 and 3. See, e.g., Honken, 184 F.3d at 963. The court held an episodic sentencing hearing on December 15 and 16, 1997, and February 17, 18, and 24, 1998. Honken testified under oath on February 18 and 24, 1998. After the government's appeal of the sentence originally imposed by the undersigned, see id., Honken was resentenced on January 25, 2000. Honken then unsuccessfully appealed his sentence, see United States v. Honken, 2 Fed.Appx. 611 (8th Cir.2001). Honken is now serving his sentence on Counts 1 and 4 in the 1996 case.

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B. Procedural Background To The Present Case

1. Indictments in the present case

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, which had, for example, allegedly brought the 1993 prosecution to its abrupt conclusion and had been intended to impede prosecution of the 1996 case. On August 23, 2002, a Superseding Indictment was handed down in this case, amending Counts 8 through 17. See Superseding Indictment (docket no. 46). The court will examine the charges in this case in more detail as a prelude to a discussion of the admissibility of certain evidence at trial of those charges.

Counts 1 through 5 of the Superseding Indictment charge "witness tampering." More specifically, each count alleges that Honken "did willfully, deliberately, maliciously, and with premeditation and malice aforethought, unlawfully kill" one of five witnesses: Gregory Nicholson, Lori Duncan (Nicholson's girlfriend), Amber Duncan and Kandi Duncan (Lori Duncan's daughters, ages 6 and 10), and Terry DeGeus. Count 1 alleges that Gregory Nicholson was murdered

1) with the intent to prevent Gregory Nicholson from attending or providing testimony at an official proceeding in the Northern District of Iowa, Case Nos. 93-20 M and CR 93-3019 [the 1993 case]; 2) with intent to prevent Gregory Nicholson from communicating to a law enforcement officer of the United States, information relating to the commission or possible commission of federal offenses, including: the distribution of methamphetamine, the manufacture of methamphetamine and conspiracy to distribute and manufacture methamphetamine, a Schedule II Controlled Substance, in violation of Title 21 United States Code, Sections 841 and 846; and 3) with intent to retaliate against Gregory Nicholson for providing information to law enforcement relating to the commission or possible commission of federal offenses, including: the distribution of methamphetamine, the manufacture of methamphetamine and conspiracy to distribute and manufacture methamphetamine, a Schedule II Controlled Substance, in violation of Title 21 United States Code, Sections 841 and 846[;] and 4) with intent to retaliate against Gregory Nicholson for testifying before the Federal Grand Jury investigating the drug trafficking activities of DUSTIN LEE HONKEN and others, which killing is a first degree...

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6 cases
  • U.S. v. Honken, CR 01-3047-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • July 29, 2005
    ...new trial. On June 7, 2004, the court entered a ruling on the government's pre-trial motions (docket no. 272), United States v. Honken, 378 F.Supp.2d 928 (N.D.Iowa 2004). That ruling granted the government's motion to admit evidence of Honken's admissions during his guilty plea, sentencing,......
  • Johnson v. United States , s. C 09–3064–MWB, CR 01–3046–MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 22, 2012
    ...2004) (ruling on the parties' second round of pre-trial motions regarding admissibility of evidence); United States v. Honken, 378 F.Supp.2d 928 (N.D.Iowa 2004) (ruling on government's pre-trial motions regarding admissibility of evidence); United States v. Honken, 378 F.Supp.2d 925 (N.D.Io......
  • Johnson v. United States, C 09-3064-MWB
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 22, 2012
    ...Supp. 2004) (ruling on the parties' second round of pre-trial motions regarding admissibility of evidence); United States v. Honken, 378 F. Supp. 2d 928 (N.D. Iowa 2004) (ruling on government's pre-trial motions regarding admissibility of evidence); United States v. Honken, 378 F. Supp. 2d ......
  • Honken v. United States, s. CV10–3074–LRR
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • October 4, 2013
    ...between the movant and Gregory Nicholson and between the movant and Timothy Cutkomp. See generally United States v. Honken, 378 F.Supp.2d 928 (N.D.Iowa 2004). It also reserved for trial the question of the admissibility, for demonstrative purposes, of a replica firearm. Id. Additionally, on......
  • Request a trial to view additional results

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