053871P.pdf   09/12/2008  USA  v.  Dustin Honken
   U.S. Court of Appeals Case No:  05-3871
   U.S. District Court for the Northern District of Iowa - Sioux City   
   [PUBLISHED] [Riley, Author, with Gruender and Shepherd, Circuit Judges]
   Criminal case - criminal law. While defendant's drug conspiracy
   murder and Continuing Criminal Enterprise murder convictions may have
   been duplicitous, defendant failed to raise the issue in the trial court,
   and he waived the issue for appeal; defendant's 1996 conviction for
   conspiracy to manufacture methamphetamine did not bar his subsequent
   prosecution for murdering five people in furtherance of a drug conspiracy
   and Continuing Criminal Enterprise; maps a co-conspirator drew to lead
   the police to the bodies of the murder victims were properly admitted as
   they were non-testimonial and did not violate defendant's right to
   confront the witnesses against him; district court properly admitted the
   maps as statements against the witness's penal interests; maps were
   relevant and probative; courtroom security measures, which included
   shackles and stun belt, were necessary to maintain courtroom security in
   light of defendant's escape attempts and plans to kill witnesses and
   prosecutors, and the district court's steps were sufficient to mitigate
   any prejudicial effect the security measures might have had on the jury;
   district court's substitution of an alternate juror for the penalty phase
   of the case did not violate Federal Death Penalty Act; district court did
   not abuse its discretion in denying defendant's motion for mistrial based
   on allegations that the jury was tainted by comments from the removed
   juror; Rule 606(b) prohibits a juror from testifying as to whether
   extraneous information or an outside influence affected that juror's
   ability to be impartial; here, the district court erred in asking the
   removed juror what effect her boss's comments had on her and whether
   exposure to her boss's comments affected her ability to be impartial;
   however, after a independent review, the court concludes that no evidence
   suggests the boss's remarks (that she should say something outrageous so
   that she would be excused from service in the case) presented even the
   remotest possibility of influencing any typical or reasonable juror's
   verdict, and the error does not entitle defendant to a new trial; district
   court did not err in refusing to instruct the jury that it had to find
   unanimously the identity of the five persons defendant directed as part
   of the Continuing Criminal Enterprise as failure to give the unanimity
   instruction is not plain error; district court did not err in instructing
   the jury to weigh defendant's intent as both an eligibility factor and an
   aggravating factor in its death penalty deliberations; defendant had no
   constitutional right to allocution before the jury; challenges to
   prosecutor's penalty phase closing arguments rejected; argument that the
   death penalty is unconstitutional because innocent people may be executed
   rejected; grand jury's superseding indictment included aggravating factors
   and did not violate Ring v. Arizona.