Honken v. United States of America

Filing 63

ORDER denying 46 Renewed Motion for Discovery. (See order text). Signed by Chief Judge Linda R Reade on 10/27/11. (ksy)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

DUSTIN LEE HONKEN,
Movant,

No. CV10-3074-LRR
No. CR01-3047-LRR

vs.
UNITED STATES OF AMERICA.

ORDER ON RENEWED MOTION
FOR DISCOVERY

____________________________
This matter appears before the court on Dustin Lee Honken’s renewed motion for
discovery (civil docket no. 46). Dustin Lee Honken (“the movant”) filed such motion on
October 6, 2011. The government filed a resistance (civil docket no. 49) on October 13,
2011. The movant did not file a reply.
In its order dated September 28, 2011, the court, in part, stated:
Although it will not permit the movant to interview all of the
witnesses who are in the WitSec program merely to determine
if they could provide information that might support his
claims, the court finds that it should permit the movant an
additional opportunity to request appropriate discovery that
pertains to the witnesses who are in the WitSec program
because requesting appropriate discovery is especially
important in cases that involve the penalty of death. If
information about a particular witness who is in the WitSec
program exists and it is relevant to the movant’s allegation that
jailhouse informants colluded, the movant may move the court
to allow him to conduct discovery. In accordance with Rule
6 of the Rules Governing Section 2255 Proceedings, the
movant is encouraged to make specific requests and to provide
reasons for his requests. In the event that an appropriate
discovery request is received, the court will conduct
proceedings in camera. As part of those proceedings, the

court may elect to interview or examine the witness by phone,
opt to have the movant propose questions and then have the
government obtain answers that are in writing and under oath
or pick an alternative that is suggested by the parties. See
Harris, 394 U.S. at 290 (concluding that, where “a prima facie
case for relief [is present, a court] may use or authorize the
use of suitable discovery procedures, including interrogatories,
reasonably fashioned to elicit facts necessary to help the court
to ‘dispose of the matter as law and justice require’”); Rule 7
of the Rules Governing Section 2255 Proceedings (addressing
expansion of the record).
The movant now avails himself of the additional opportunity to request appropriate
discovery that the court afforded him. He states that information obtained from three
jailhouse informants shows that: (1) witnesses colluded to conform their testimony; (2)
government agents pressured witnesses to reveal information; (3) government agents
threatened to charge witnesses if they did not cooperate; and (4) government agents offered
witnesses leniency if they cooperated. Although the movant acknowledges that he is
unable to provide any specific details about what information Joseph McGee, Robert
McNeese, Ronald McIntosh, Fred Tokars, Steve Vest and Anthony Altimus1 may be able
to provide to him, he argues that “the consistent pattern of information provided” by three
jailhouse informants entitles him to interview all of the witnesses in the WitSec program.

1

In his original motion for discovery, the movant sought discovery with respect to
seven individuals: Joseph McGee, Robert McNeese, Ronald McIntosh, Fred Tokars, Steve
Vest, Anthony Altimus and Dean Donaldson. In his September 15, 2011 witness list, the
movant listed eight individuals who he believed to be in the WitSec program: Anthony
Altimus, Dean Donaldson, Steve Ferguson, Joseph McGee, Robert McNeese, Ronald
McIntosh, Fred Tokars and Steve Vest. In its resistance to the instant motion, the
government declares that Dean Donaldson is not in the WitSec program. Neither the
original motion for discovery nor the renewed motion for discovery reference Steve
Ferguson.
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The court reaffirms its prior determination that discovery is not warranted under
Rule 6 of the Rules Governing Section 2255 Proceedings. A prima facie case for relief
is not present because the record belies the movant’s contention that the government
committed a Brady violation and witnesses in the WitSec program colluded with other
witnesses. The movant did not provide specific evidence that the requested discovery
would support his claims and only offered generalized statements regarding the possibility
that discoverable material may exist. Because the movant’s requests are overly broad in
that they encompass all of the witnesses who are in the WitSec program, it is not
appropriate to allow the movant to interview them.
The court disagrees with the movant’s assertion that he has established a significant
pattern of unconstitutional nondisclosure by the government and, therefore, he should be
allowed to interview the witnesses who are in the WitSec program to advance his claims.
Contrary to the movant’s allegations, the record, which includes the recent statements
offered by Dennis Putzier, Terry Bregar and Anthony Johnson, does not establish a pattern
or indicate an increased likelihood that a Brady violation occurred. The movant makes
clear that he interviewed other witnesses, but he does not assert that the government acted
improperly with respect to them. And, to the extent that Dennis Putzier, Terry Bregar and
Anthony Johnson have now offered similar statements as to pressure that the government
placed on them or promises that the government made to them, the court finds that those
similarities do not tend to reasonably imply the government acted in an improper manner.
With respect to the movant’s allegations about the government’s misconduct, the court
finds that “good cause” is lacking.
Moreover, apart from the movant’s speculation, nothing suggests that the witnesses
who are in the WitSec program: (1) were pressured to testify against the movant; (2) were
told they would be charged if they did not provide information; (3) were offered lenience
in exchange for their testimony; (4) provided untruthful testimony during trial; (5) testified
based on information provided to them by the government; and/or (6) colluded with other
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witnesses to conform their testimony. The court finds that the “pattern” that the movant
relies on cannot be imputed to the witnesses who are in the WitSec program. Although
the movant interviewed several witnesses who testified during the movant’s trial and three
of those witnesses made statements that conflict with their earlier testimony, it does not
necessarily follow that the witnesses in the WitSec program will offer anything that is
helpful to the movant. This is especially true in light of the facts that pertain to the
witnesses who were confined at the Woodbury County Jail and the facts that pertain to the
witnesses who are in the WitSec program.
Based on the foregoing, the movant’s renewed motion for discovery (civil docket
no. 46) is denied.
IT IS SO ORDERED.
DATED this 27th day of October, 2011.

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