Full opinion text
ORDER REGARDING MOTION TO VACATE, SET ASIDE OR CORRECT CONVICTIONS AND SENTENCES LINDA R. READE, Chief Judge. I. INTRODUCTION.......................................................962 II. BACKGROUND.........................................................962 A. Underlying Criminal Proceedings....................................962 1. Drug charges against the movant in 1993 and disappearance of five witnesses.................................................962 2. Drug charges against the movant in 1996 and efforts to avoid convictions ...................................................965 3. Ongoing investigation, charges against Angel a Johnson in 2000 and discovery of the victims’ bodies.............................969 4. Charges in 2001 .................................................970 5. Pre-trial filings and rulings......................................972 6. Jury selection and trial..........................................974 7. Post-trial rulings and judgment..................................978 8. Direct appeal...................... 979 B. Proceedings Related to Civil Action Under 28 U.S.C. § 2255.............980 III. STANDARDS APPLICABLE TO CLAIMS UNDER 28 U.S.C. § 2255 ......... 982 A. Remedies on Motion Attacking Federal Sentence ......................982 B. Heightened Scrutiny in Capital Case.................................984 C. Ineffective Assistance of Counsel Under the United States Constitution......................................................985 1. Overview.......................................................985 2. Deficient performance ...........................................986 3. Prejudice.......................................................988 4. Appellate counsel................................................989 5. Summary.......................................................990 D. Harmless Error Review of Constitutional Error........................990 TV. REVIEW OF GROUNDS FOR RELIEF...................................991 A. Ground One — Constitutional Violations Occurred as a Result of the Admission of the Judgments of Conviction that Related to the 1996 Case ........................................................991 1. Arguments of the parties.........................................991 a. The movant.................................................991 b. The government.............................................993 2. Background.....................................................994 3. Analysis........................................................995 B. Ground Two — Constitutional Violations Occurred as a Result of the Findings that Were Made Pursuant to the Sentencing Hearing in the 1996 Case.....................................................999 1. Arguments of the parties.........................................999 a. The movant.................................................999 b. The government............................................1002 2. Applicable law.................................................1003 3. Analysis......................................•.................1006 C. Ground Three — Constitutional Violations Occurred as a Result of the Parties’ Actions Concerning Jailhouse Informants and Cooperators .....................................................1009 1. Arguments of the parties........................................1009 a. The movant.................................:-i..............1009 b. The government.................:..........................1012 2. Applicable law.................................................1013 3. Analysis.......................................................1015 a. The information cited by the movant.........................1015 (1) Dennis Putzier .........................................1015 (2) Terry Bregar ...........................................1017 (3) Anthony Johnson .......................................1020 (4) Daniel Cobeen..........................................1021 (5) Summary...............................................1022 b. Materiality ................................................1022 c. The performance of trial counsel and the prior cooperation of witnesses..............................................1023 D. Ground Four — Constitutional Violations Occurred as a Result of the Litigation of the Continuing Criminal Enterprise Murder Counts..........................................................1025 1. Arguments of the parties........................................1025 a. The movant................................................1025 b. The government............................................1026 2. Analysis.......................................................1027 E. Ground Five — Constitutional Violations Occurred as a Result of the Multiplicitous Charges............................................1033 1. Arguments of the parties........................................1033 a. The movant ................................................1033 b. The government............................................1035 2. Analysis.......................................................1036 F. Ground Six — Constitutional Violations Occurred as a Result of the Admission of Hearsay Evidence to Support the Quantity of Drugs----1038 1. Arguments of the parties........................................1038 a. The movant................................................1038 b. The government............................................1040 2. Analysis.......................................................1041 G. Ground Seven — Constitutional Violations Occurred as a Result of the Jury Selection Process........................................1043 1. Arguments of the parties........................................1043 a. The movant................................................1043 ■ b. The government............................................1044 2. Analysis.......................................................1045 a. The agreement.............................................1046 b. The implementation of the agreement and the reliance on a jury consultant...........................................1048 c. The role of the trial court....................................1050 d. The decision by appellate counsel............................1051 H. Ground Eight — Constitutional Violations Occurred as a Result of the System for Summoning Venire Members........................1054 1. Arguments of the parties........................................1054 a. The movant................................................1054 b. The government............................................1056 2. Analysis.......................................................1057 I. Ground Nine — Constitutional Violations Related to the Penalty Phase of Trial...................................................1058 1. Background....................................................1058 a. The investigation...........................................1058 b. The mitigating circumstance evidence that trial counsel did present at the penalty phase ...........................1070 2. Arguments of the parties........................................1077 a. The movant.........................................-.......1077 (1) Family history..........................................1078 (2) Drug use...............................................1080 (3) Rejection of mitigation specialist’s recommendation to have mental health experts conduct an evaluation, reliance on wrong experts and missed opportunities to discover additional unknown facts......................1081 b. The government............................................1082 3. Additional evidence that should have been presented..............1083 a. Dr. Richard G. Dudley, Jr...................................1083 b. Dr. John F. Warren, III.....................................1086 c. Dr. Melissa P. Piasecki.....................................1087 d. Dr. Michael M. GelboH......................................1088 4. Analysis.......................................................1089 a. The applicable law..........................................1089 b. The investigation and the presentation of the mitigation evidence.................................................1092 (1) Evidence known to the defense...........................1092 (2) Recommendation of mitigation specialist..................1096 (3) Consideration of the government’s response ...............1100 (4) Timely development of mitigation case....................1103 (5) Consideration of drug use................................1104 (6) consideration of theory of defense.........................1106 (7) Overall presentation of mitigation evidence ...............1107 c. The reasonableness of presenting a mitigation case based on mental health and drug use evidence....................1108 (1) Reliable evidence not taken into account by the movant’s experts......................................1108 (2) Testimony of the movant’s experts........................1113 (a) Mental health evidence.............................1113 (i) Dr. Richard G. Dudley, Jr....................1113 (ii) Dr. John F. Warren, III......................1116 (iii) Summary...................................1117 (b) Drug use evidence..................................1120 (3) Competent counsel would not offer the current mitigation case.......................................1123 d. The lack of prejudice........................................1125 J. Ground Ten — Constitutional Violations Occurred as a Result of the Penalty Phase Jury Instructions..................................1127 1. Arguments of the parties........................................1127 a. The movant................................................1127 b. The government............................................1131 2. Analysis.......................................................1134 K. Ground Eleven — Constitutional Violations Occurred as a Result of the Admission of Victim Impact Evidence..........................1137 1. Arguments of the parties........................................1137 a. The movant........................... 1137 b. The government............................................1140 2. Analysis.......................................................1141 L. Ground Twelve — Constitutional Violations Occurred as a Result of the Presentation of Inconsistent Arguments During Related Trials...........................................................1146 1. Arguments of the parties........................................1146 a. The movant................................................1146 b. The government............................................1149 2. Analysis.......................................................1151 M. Ground Thirteen — Constitutional Violations Occurred as a Result of the Admission of Evidence by the Parties’ Stipulation ..............1154 1. Arguments of the parties........................................1154 a. The movant........................ 1154 b. The government'............................................1157 2. Analysis.......................................................1158 N. Ground Fourteen — Constitutional Violations Occurred as a Result of the Admission of Testimony About Drugs and Threats of Violence.........................................................1160 1. Arguments of the parties........................................1160 a. The movant................................................1160 b. The government............................................1162 2. Analysis.......................................................1164 O. Ground Fifteen — Constitutional Violations Occurred as a Result of the Admission of Testimony About Bad Acts........................1166 1. Background regarding the escape evidence .......................1167 2. Arguments of the parties........................................1169 a. The movant................................................1169 b. The government................ 1171 3. Analysis.......................................................1172 P. Ground Sixteen — Constitutional Violations Occurred as a Result of the Insufficient Evidence in Support of the Theory of Defense____1173 1. Arguments of the parties........................................1173 a. The movant................................................1173 b. The government............................................1175 2. Analysis..................................................... 1177 Q. Ground Seventeen — Constitutional Violations Occurred as a Result of a Dismissed Juror.............................................1178 1. Background relating to Juror 523 ................................1179 2. Arguments of the parties........................................1181 a. The movant................................................1181 b. The government............................................1182 3. Analysis......................... 1183 R. Ground Eighteen — Constitutional Violations Occurred as a Result of the Security Measures..........................................1185 1. Arguments of the parties........................................1185 a. The movant................................................1185 b. The government............................................1187 2. Analysis.......................................................1189 S. Ground Nineteen — Constitutional Violations Occurred as a Result of the Admission of Forensic Evidence.............................1190 1. Arguments of the parties........................................1190 a. The movant................................................1190 b. The government............................................1191 2. Analysis.......................................................1192 T. Grounds Twenty and Twenty-One — Constitutional Violations Occurred as a Result of Cumulative Error and Manner of Execution.......................................................1193 V. SUMMARY OF RESOLUTION OF GROUNDS............................1194 VI. CERTIFICATE OF APPEALABILITY...................................1196 VII. CONCLUSION.........................................................1197 I. INTRODUCTION After convicting Dustin Lee Honken (“the movant”) of five capital counts of conspiracy to commit murder while engaging in the manufacture and distribution of methamphetamine (“conspiracy murder”) and five capital counts of continuing criminal enterprise murder (“CCE murder”), a jury sentenced him to death for the murders of two little girls who were ten years old and six years old at the time of their deaths. The movant now seeks relief under 28 U.S.C. § 2255 and/or 28 U.S.C. § 2241. The government opposes the movant’s request to vacate, correct or set aside his sentences and the movant’s request to prevent his execution in a particular manner. II. BACKGROUND A. Underlying Criminal Proceedings 1. Drug charges against the movant in 1993 and disappearance of five witnesses In 1992, the movant and his best friend, Timothy Cutkomp, began manufacturing methamphetamine in Tucson, Arizona. The movant’s brother, Jeffrey Honken, financed their methamphetamine operation, and the name of Jeffrey Honken’s company was used to purchase precursor chemicals that were needed to manufacture methamphetamine. While in Arizona, the movant and Timothy Cutkomp manufactured pounds of methamphetamine, which generated more than $100,000.00 after being distributed. The movant distributed the methamphetamine that he and Timothy Cutkomp manufactured only to Gregory Nicholson and Terry DeGeus, who distributed methamphetamine to their own customers in the Mason City, Iowa, area. In early 1993, the movant became acquainted with Terry DeGeus’s girlfriend, Angela Johnson. Terry DeGeus caused the movant and Angela Johnson to meet when he instructed Angela Johnson to give the movant some money. Shortly thereafter, Angela Johnson told the movant that she wanted to sell methamphetamine without having to purchase it from Terry De-Geus, and the movant and Angela Johnson became romantically involved. Within six months of the formation of their relationship, Angela Johnson became pregnant with the movant’s child. At some point, the movant confided in Jeffrey Honken that Angela Johnson had drug connections. As a result of an investigation that originated in Minnesota, law enforcement targeted Gregory Nicholson in March of 1993. After he unwittingly participated in a controlled buy and law enforcement discovered drugs, including a large amount of methamphetamine (143.89 grams of actual (pure) methamphetamine), cash and a gun in his home, Gregory Nicholson decided to cooperate with law enforcement. Despite being fearful of the movant, Gregory Nicholson arranged to meet the movant on March 21, 1993. Unbeknownst to the movant, the meeting between the movant and Gregory Nicholson was monitored and recorded by law enforcement. During the meeting, the movant and Gregory Nicholson discussed the distribution of methamphetamine, and Gregory Nicholson paid the movant $3,000.00, which was part of the amount of money that he owed the movant for past methamphetamine deliveries. On the same day that the meeting took place, law enforcement arrested the movant and Timothy Cutkomp. On March 23,1993, the government filed a federal criminal complaint against the movant. See United States v. Honken, Case No. 3:93-cr-03019-MJM (N.D.Iowa 1995). After being released on bond, the movant moved from Arizona to Mason City, Iowa. His release, however, had conditions, which included, among others, being prohibited from possessing a firearm and contacting Timothy Cutkomp, Gregory Nicholson, Terry DeGeus, Dave Patrick and Russell Miller. In April of 1993, a grand jury indicted the movant for conspiracy to distribute methamphetamine. Before indicting the movant, the grand jury considered Gregory Nicholson’s testimony. The movant told Timothy Cutkomp that he believed Gregory Nicholson would testify against him during trial. During June and July of 1993, the movant and Angela Johnson searched for Gregory Nicholson. To facilitate their search, they often asked Angela Johnson’s friend, Christi Gaubatz, to babysit Angela Johnson’s daughter. On June 30, 1993, Angela Johnson obtained a permit to purchase a handgun. On July 7, 1993, Angela Johnson traveled to Waterloo, Iowa, and purchased an Intratec Tec-9, nine millimeter, semiautomatic handgun at a pawn shop. For about two weeks after his arrest, Gregory Nicholson continued to live with his wife. During such period, Gregory Nicholson acted paranoid by demanding the curtains be shut and forbidding his wife and child to go outside during the day. After his wife left him, Gregory Nicholson lived in various places. In mid-July of 1993, a mutual friend introduced Gregory Nicholson to Lori Duncan, who was a single, working mother of two girls. Shortly thereafter, Gregory Nicholson began staying at her home in Mason City, Iowa. After being informed prior to July 23, 1993, that the movant intended to plead guilty, the trial court set a change of plea hearing. On July 24, 1993, the movant and Angela Johnson again asked Christi Gaubatz to babysit Angela Johnson’s daughter at Angela Johnson’s home, and they borrowed Christi Gaubatz’s car so that they could search for Gregory Nicholson. Rather than return around midnight as usual, the movant and Angela Johnson returned home at 5:00 a.m. When they returned, Christi Gaubatz heard them whisper and then go into the bathroom. The shower began running, and Christi Gaubatz left and went home. After July 24, 1993, the movant and Angela Johnson never asked Christi Gaubatz to babysit or to borrow her car so that they could look for Gregory Nicholson. On July 25, 1993, -Gregory Nicholson (age 34) went missing. At the same time that Gregory Nicholson disappeared, Lori Duncan (age 31) and her daughters, Kandi Duncan (age 10) and Amber Duncan (age 6) also went missing. On July 30, 1993, the movant appeared for his change of plea hearing, but he advised his attorney that he was not going to plead guilty. To explain his decision, the movant informed his attorney that he had heard Gregory Nicholson skipped town. The movant’s attorney then informed the government that the case against his client was not as strong as the government believed. The movant also provided his attorney with a VHS tape that he said had been placed in his car by an unknown person. On such tape, Gregory Nicholson exculpated the movant by stating that he had set up the movant because he needed to give the government someone. The movant’s attorney did not show the tape to the government. As a result of being unable to find Gregory Nicholson, the government focused its attention on Terry DeGeus. On October 27, 1993, the government subpoenaed several witnesses, including Angela Johnson and Aaron Ryerson, to appear before the grand jury. As an associate of Angela Johnson and Terry DeGeus, Aaron Ryerson had obtained methamphetamine from Terry DeGeus, knew that Terry DeGeus supplied Angela Johnson with methamphetamine and saw°a man who matched the movant’s description deliver methamphetamine to Terry DeGeus. After appearing in front of the grand jury where he invoked his right to remain silent, Aaron Ryerson told Terry DeGeus that Terry DeGeus and the movant were the subjects of the grand jury investigation. Terry DeGeus then called Angela Johnson, who had also appeared before the same grand jury while the movant waited for her, to convey what he knew about the grand jury investigation. Having reason to believe that the government had subpoenaed Terry DeGeus to appear in front of the grand jury, the movant told Timothy Cutkomp that he was worried about Terry DeGeus because he thought Terry DeGeus would testify against him during trial. On November 5, 1993, Terry DeGeus (age 32) went missing. Sometime during the day that he disappeared, Angela Johnson called Terry DeGeus’s mother and told his mother to have Terry DeGeus call her. On the evening that he disappeared, Terry DeGeus told Aaron Ryerson that he was going to see Angela Johnson. Terry De-Geus also dropped off his ten-year-old daughter at his mother’s home and told his mother and daughter, that he was going to meet Angela Johnson. Despite telling his mother and daughter that he would return shortly to get his daughter, Terry DeGeus never did. In response to questions that Terry DeGeus’s family and law enforcement asked, Angela Johnson made contradictory statements. Specifically, on the one hand, she denied that she ever saw Terry DeGeus on the evening of November 5, 1993, and, on the other hand, she admitted that she saw him on November 5, 1993, and claimed that he left after they talked. As close friends, Angela Johnson and Christi Gaubatz had keys to each other’s homes, and they came and went from each other’s homes as they pleased. While cleaning a bedroom closet in her home some time during the winter of 1993 to 1994, Christi Gaubatz discovered a large, black handgun with a silencer. Such handgun resembled a Tec-9, nine millimeter, semi-automatic handgun like the one that Angela Johnson had purchased. Christi Gaubatz found the handgun inside of a cosmetics bag that belonged to Angela Johnson. Because she believed the handgun belonged to Angela Johnson, Christi Gaubatz called Angela Johnson to demand that she remove it. In response, Angela Johnson told Christi Gaubatz not to worry about the handgun because the movant would take care of it. In the winter of 1993 to 1994, the movant planned to destroy a large, black handgun. To do so, the movant sought Timothy Cutkomp’s assistance. Both of them used a torch to cut and melt the handgun into unrecognizable pieces, which they discarded in ditches along a country road. After the disappearance of Gregory Nicholson and Terry DeGeus, the government did not prosecute the movant. Consequently, on March 21, 1995, the trial court dismissed without prejudice the indictment against the movant. Years after receiving the VHS tape and shortly after the trial court entered its dismissal order, the movant’s attorney returned the tape to the movant. 2. Drug charges against the movant in 1996 and efforts to avoid convictions While the 1993 charges against him were pending, the movant sought to manufacture methamphetamine by building a laboratory and by taking significant steps to facilitate the manufacture of methamphetamine. For example, the movant, Angela Johnson, Timothy Cutkomp and Christi Gaubatz made trips to Arizona to recover methamphetamine manufacturing equipment and to purchase chemicals to manufacture methamphetamine and other drugs. And, after the trial court dismissed the 1993 indictment against the movant in March of 1995, Timothy Cutkomp and the movant traveled to Arizona to obtain more chemicals to manufacture drugs. From March of 1993 through 1995, the movant and Timothy Cutkomp experimented with the manufacture of methamphetamine and other drugs at various locations, including Timothy Cutkomp’s home and Angela Johnson’s home. Angela Johnson helped the movant and Timothy Cutkomp by providing funding to them. Jeffrey Honken also provided money to the movant. In late 1995, the movant rented a home in Mason City, Iowa, and the movant and Timothy Cutkomp moved their drug operation to such home. In the fall of 1995, the movant recruited Daniel Cobeen to help him and Timothy Cutkomp manufacture methamphetamine. Daniel Cobeen, however, contacted law enforcement and began cooperating with them. Pursuant to such cooperation, law enforcement learned that the movant told Daniel Cobeen that he had made witnesses disappear and he wanted to kill law enforcement officers who had investigated his prior drug activity. Law enforcement also learned that the movant introduced Daniel Cobeen to four other individuals, not including Timothy Cutkomp or Angela Johnson, who would be involved in the methamphetamine operation and took him to meet Angela Johnson so that she could approve of his participation. From mid-1995 to February of 1996, the movant, while receiving funding from Angela Johnson and assistance from Timothy Cutkomp and Daniel Cobeen, built a complex methamphetamine laboratory and took significant steps toward the manufacture of methamphetamine. After conducting an undercover investigation and obtaining a search warrant, law enforcement searched the movant’s home on February 7, 1996. In addition to a methamphetamine laboratory, chemicals and equipment, law enforcement seized paper notes and books about using counter-surveillance measures, manufacturing drugs and gun silencers and binding and gagging prisoners. On April 11, 1996, a grand jury again indicted the movant. This time he faced several charges, including a charge of conspiring with co-defendant Timothy Cutkomp and others to manufacture and distribute 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine and 100 grams or more of pure methamphetamine. See United States v. Honken, Case No. 3:96-cr-03004-MWB (N.D.Iowa 1998). On April 29, 1996, law enforcement arrested the movant. The trial court released the movant and Timothy Cutkomp pending trial. With respect to the movant’s pre-trial release, the trial court confined him to his home, granted him work release, subjected him to electronic monitoring and placed restrictions on his communications. The trial court ordered that he not be in contact with Timothy Cutkomp and Daniel Cobeen. While the 1996 indictment was pending, the movant plotted to murder Daniel Co-been, law enforcement officers and chemists, and he planned to destroy physical evidence that the government could use against him. Rather than go along with the movant’s plan, Timothy Cutkomp decided to cooperate with law enforcement. As part of such cooperation, Timothy Cutkomp wore a wire when he conversed with the movant. In more than eight hours of recorded conversations, the movant discussed his 1993 charges, referenced witnesses that had been eliminated in 1993 and described his plan to evade his current charges by killing witnesses and law enforcement officers. In light of the recordings, the movant was arrested on June 11, 1996, and the trial court revoked his pre-trial release. Before the trial court revoked his pre-trial release, the movant had persuaded a coworker, Rick Held, to buy a handgun for Angela Johnson. Rick Held purchased a handgun, but, after being detained, the movant had Angela Johnson call Rick Held to let him know that the movant no longer needed the handgun. While detained at the Woodbury County Jail in Sioux City, Iowa, the movant admitted to other inmates that he had killed witnesses to avoid earlier charges. The movant described the murders in great detail. Aside from divulging details about the murders, the movant plotted additional murders. Specifically, he planned to murder Daniel Cobeen, Timothy Cutkomp, a chemist who determined a substance to be methamphetamine, an assistant federal prosecutor and Angela Johnson. The movant instructed a fellow inmate at the Woodbury County Jail, Dean Donaldson, to kill Timothy Cutkomp and provided Dean Donaldson with very specific information, including Timothy Cutkomp’s work schedule and directions to Timothy Cutkomp’s home and place of work. He also directed Dean Donaldson to send threatening letters to Daniel Cobeen and to continue to manufacture methamphetamine. With respect to the latter directive, the movant gave Dean Donaldson manufacturing instructions and directed him to locations where he had stored manufacturing equipment. Aside from just talking to Dean Donaldson, the movant took significant steps to effectuate his plans. For example, the movant wrote notes to guide and help Dean Donaldson, and the movant had his girlfriend, Kathy Rick, get Dean Donaldson out of the Woodbury County Jail by posting his bond. To secure Dean Donaldson’s bond, Kathy Rick pledged her home as collateral. On August 14, 1996, Dean Donaldson got out of the Woodbury County Jail. As a result of Dean Donaldson’s failure to follow through with the movant’s plan before he was arrested while out on bond, the movant sought to have Angela Johnson post bond for Anthony Altimus and to have her help him find Timothy Cutkomp so that Anthony Altimus could kill him. To execute such plan, Angela Johnson obtained $1,000.00 from Colleen Birkey after the movant sold a methamphetamine recipe to Colleen Birkey’s ex-husband. Angela Johnson, however, never posted Anthony Altimus’s bond because she lacked sufficient funds. Additionally, while at the Woodbury County Jail, the movant and other inmates, including Dennis Putzier, unsuccessfully attempted to escape by breaking a hole in the wall of a cell and arranging for Angela Johnson to deliver a hacksaw, a chisel, a hammer and a rope to them. In the event that he did escape, the movant intended to kill witnesses and other individuals. Jailers, however, thwarted the movant’s escape. On June 2,1997, the movant changed his plea with respect to two counts of a four-count superseding indictment, which was returned by the grand jury on July 10, 1996. Specifically, he pleaded guilty to: (1) conspiring to manufacture and distribute 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine and 100 grams or more of pure methamphetamine from between about 1992 and February 7, 1996 and (2) attempting 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 on or about February 7, 1996. Before the trial court accepted his guilty pleas, the movant acknowledged and admitted the elements of each offense, including the amount of methamphetamine— at least 1000 grams of a mixture or substance containing a detectable amount of methamphetamine and at least 100 grams of pure methamphetamine — that he conspired to manufacture and distribute and attempted to, manufacture, and he acknowledged the minimum and maximum sentence that he faced as a result of conspiring to manufacture and distribute 1000 grams of a mixture or substance containing a detectable amount of methamphetamine and 100 grams of pure methamphetamine and attempting to manufacture 1000 grams of a mixture or substance containing a detectable amount of methamphetamine and 100 grams of pure methamphetamine. During the movant’s sentencing hearing, the government presented evidence that tied the movant to the disappearances of Gregory Nicholson, Lori Duncan, Kandi Duncan, Amber Duncan and Terry De-Geus and that showed the movant’s ongoing efforts to evade criminal charges. The movant elected to testify to avoid sentencing enhancements. While testifying, the movant: (1) admitted that he manufactured methamphetamine with Timothy Cutkomp but disputed the quantities; (2) admitted that, in 1993, he told his attorney about a VHS tape in which Gregory Nicholson exculpated him but denied it ever existed; (3) admitted that he talked to Daniel Cobeen about helping him and Timothy Cutkomp manufacture methamphetamine; (4) admitted that, while on pre-trial release in 1993, he had run into Scott Gahn and he discussed Gregory Nicholson with him; (5) admitted that, after being arrested in 1996, he and Timothy Cutkomp talked about killing Daniel Cobeen and other witnesses and about the other witnesses that posed a problem for the movant in 1993; (6) admitted that he gave Timothy Cutkomp a rifle, not a Tec-9, nine millimeter, semi-automatic handgun, because his children, who were both under the age of two, expressed excessive interest in it; (7) admitted that he gave Dean Donaldson a map to Timothy Cutkomp’s home, a work schedule for Timothy Cutkomp and notes that were directed to others; and (8) admitted that he had Kathy Rick post bond to get Dean Donaldson out of jail but did so to have Dean Donaldson manufacture and distribute methamphetamine in an attempt to secure an additional retainer for his attorney rather than to harm Timothy Cutkomp. After a lengthy, multi-day sentencing hearing, the trial court made several findings. The trial court did not find support for the government’s assertion that the movant conspired to manufacture and distribute methamphetamine while under supervision for the 1993 charge of conspiring to distribute methamphetamine. It reasoned that the government failed to carry its burden because Timothy Cutkomp had credibility issues and the record lacked corroborating evidence. Consequently, it did not apply an enhancement under USSG § 2J1.7. Concerning an enhancement under USSG § 3C1.1 and an enhancement under USSG § 2Dl.l(b)(l), the government argued that the movant’s possession of firearms was tied to the enhancement for obstruction of justice and argued that the movant possessed firearms in furtherance of the methamphetamine conspiracy. The trial court found that the movant obstructed justice because he arranged to have a person hide evidence after being arrested in 1996, but it declined to find that he obstructed justice on the other grounds asserted by the government or that he possessed a firearm in furtherance of drug trafficking activity. And, finally, the trial court made specific findings as to drug quantity under USSG § 201.1(a), role under USSG § 3B1.1 and acceptance of responsibility under USSG § 3E1.1. Ultimately, the trial court sentenced the movant to a 293 month term of imprisonment on each count of conviction. On February 25, 1998, judgment entered against the movant. Both parties appealed. On direct appeal, the Eighth Circuit Court of Appeals affirmed the convictions but vacated the sentences. See United States v. Honken, 184 F.3d 961, 973 (8th Cir.1999). On January 25, 2000, the trial court resentenced the movant to a 324 month term of imprisonment on each count of conviction, and, on February 1, 2000, it entered an amended judgment against him. The movant appealed. On January 29, 2001, the Eighth Circuit Court of Appeals affirmed. See United States v. Honken, 2 Fed.Appx. 611, 612 (8th Cir.2001). 3. Ongoing investigation, charges against Angela Johnson in 2000 and discovery of the victims’ bodies Although law enforcement began an investigation into the disappearances of Gregory Nicholson, Lori Duncan, Kandi Duncan, Amber Duncan and Terry De-Geus in 1993, the investigation was disjointed. As a result of the 1996 drug investigation surrounding the movant and Timothy Cutkomp, law enforcement started a second investigation into the disappearances and likely murders of Gregory Nicholson, Lori Duncan, Kandi Duncan, Amber Duncan and Terry DeGeus. And, in 1999, law enforcement renewed their murder investigation. In 2000, Christi Gaubatz decided to cooperate in the ongoing murder investigation. She told law enforcement about the efforts undertaken by the movant and Angela Johnson to find Gregory Nicholson and the' large, black handgun that she found in her closet. On July 26, 2000, a grand jury indicted Angela Johnson. See United States v. Johnson, Case No. 3:00-cr-03034-MWB (N.D.Iowa 2004). The government charged her with aiding and abetting the murders of Gregory Nicholson, Lori Duncan, Kandi Duncan, Amber Duncan and Terry DeGeus. In addition to those five counts, it charged her with one count of aiding and abetting the solicitation of the murder of witnesses and one count of conspiracy to interfere with witnesses. Angela Johnson was arrested on July 30, 2000. While she was detained at the Benton County Jail in Vinton, Iowa, Angela Johnson discussed her case with Robert McNeese, who was serving a life sentence on an unrelated federal charge. Robert McNeese convinced Angela Johnson that she could escape responsibility for the five murders if he arranged to have an inmate who was already serving a life sentence falsely confess to the killings of Gregory Nicholson, Lori Duncan, Kandi Duncan, Amber Duncan and Terry DeGeus. He also convinced her to give him information that would provide a credible basis for the false confession. Angela Johnson fell for the ruse and prepared and provided Robert McNeese with maps and notes that described the locations where the five bodies were buried. Eventually, Robert McNeese turned the maps and the notes over to law enforcement. Using Angela Johnson’s maps and notes, law enforcement discovered two shallow graves containing the bodies of the five murder victims. Law enforcement found Gregory Nicholson, Lori Duncan, Kandi Duncan and Amber Duncan in a wooded area outside of Mason City, Iowa. They were all buried in a single hole. Amber Duncan was at the bottom of the hole. Kandi Duncan, Lori Duncan and then Gregory Nicholson were stacked on top of her. Gregory Nicholson, as well as Lori Duncan, had been bound, gagged and shot multiple times, including once in the head. Kandi Duncan had been shot once in the back of the head, and Amber Duncan had been shot once in the back of the head. Law enforcement found Terry DeGeus a few miles away from where the other murder victims were found. Terry DeGeus was buried face down in a farm field that was behind an abandoned house. He had been shot one or more times, including in the head, and his skull was severely fragmented. While serving his 324 month term of imprisonment at the United States Penitentiary in Florence, Colorado, the movant admitted to several inmates that he murdered people in 1993. He also admitted that he plotted to kill witnesses, law enforcement officers and a federal prosecutor after he was arrested in 1996. As a result of law enforcement’s continued investigation into his involvement in the disappearances of Gregory Nicholson, Lori Duncan, Kandi Duncan, Amber Duncan and Terry DeGeus, the movant became convinced that he would be charged with murder, and, consequently, he began to plan how he would escape and what he would do to those individuals whom he held responsible for his imprisonment. Envisioning a trial, the movant planned to call his associates as character witnesses, whom he believed would be held at the same jail and would be able to help him overpower and kill guards and escape. After escaping, the movant intended to murder witnesses, law enforcement officers and a federal prosecutor. To facilitate their escape, the movant and his recruited associates practiced retrieving an officer’s weapon, bribed a prison guard to give them handcuffs and a black box that locks over the chain between the handcuffs, learned to remove handcuffs with minimal tools and trained in martial arts scenarios that involved overpowering an armed escort. 4. Charges in 2001 Following the discovery of the bodies of the five murder victims, the government sought from a grand jury an additional indictment against Angela Johnson. See United States v. Johnson, Case No. 3:01-cr-03046-MWB (N.D.Iowa 2005). The grand jury returned an indictment against Angela Johnson on August 30, 2001. Pursuant to such indictment, the government charged Angela Johnson with ten capital counts for the murders of Gregory Nicholson, Lori Duncan, Kandi Duncan, Amber Duncan and Terry DeGeus. The government also sought and obtained on August 30, 2001, an indictment against the movant. See United States v. Honken, Case No. 3:01-cr-03047-MWB (N.D.Iowa 2005). Specifically, a grand jury indicted the movant on seventeen counts: five counts of tampering with witnesses or potential witnesses by murdering them; one count of soliciting a crime of violence, that is, the murder of a witness; one count of conspiracy to tamper with witnesses and to solicit the murder of witnesses; five capital counts of conspiracy murder; and five capital counts of CCE murder (criminal docket no. I). All of the charges arose from the movant’s murder and solicitation of murder of witnesses to his drug-trafficking and other criminal activity. On August 23, 2002, the government filed a superseding indictment (criminal docket no. 46) against the movant. Concerning the non-capital offenses, count 1 through count 5 charged the movant with “witness tampering.” More specifically, count 1 alleged that the movant “did willfully, deliberately, maliciously, and with premeditation and malice aforethought, unlawfully kill Gregory Nicholson” with the intent to prevent Gregory Nicholson from testifying in an official proceeding, with the intent to prevent Gregory Nicholson from communicating to law enforcement, with the intent to retaliate against Gregory Nicholson for providing information to law enforcement and with the intent to retaliate against Gregory Nicholson for testifying before the grand jury. Superseding Indictment (criminal docket no. 46) at 1-2, 5-6. Such conduct is in violation of 18 U.S.C. § 1512(a)(1)(A) and (a)(1)(C), 18 U.S.C. § 1513(a)(1)(A) and (a)(1)(B) and 18 U.S.C. § 1111. And, count 2 through count 5 alleged that the movant “did willfully; deliberately, maliciously, and with premeditation and malice aforethought, unlawfully kill”, respectively, Lori Duncan, Kandi Duncan, Amber Duncan and Terry DeGeus, with the intent to prevent [the named individual] from communicating to law enforcement. Such conduct is in violation of 18 U.S.C. § 1512(a)(1)(C) and (a)(2)(A) and 18 U.S.C. § 1111. Superseding Indictment (criminal docket no. 46) at 2-6. As to the other noncapital offenses, count 6 charged the movant with soliciting Dean Donaldson and Anthony Altimus to murder Timothy Cutkomp and Daniel Cobeen to prevent them from testifying in the 1996 case. Such conduct is in violation of 18 U.S.C. § 373(a)(1). Count 7 charged the movant with conspiring to tamper with witnesses and to solicit the murder of witnesses. Such conduct is in violation of 18 U.S.C. § 371. The superseding indictment amended the capital charges. Count 8 through count 12 charged conspiracy murder of Gregory Nicholson, Lori Duncan, Amber Duncan, Kandi Duncan and Terry DeGeus, respectively, as follows: On or about [July 25, 1993, or November 5, 1993], 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 conspire[] 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 (criminal docket no. 46) at 14-17. Count 13 through count 17 charged CCE murder of Gregory Nicholson, Lori Duncan, Amber Duncan, Kandi Duncan and Terry DeGeus, respectively, as follows: On or about [July 25,1993, or November 5, 1993], 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 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 Johnson], and [Jeffrey] 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[] seq. occurring between 1992 and 2000, specifically: [listing offenses in eighteen paragraphs]. From this continuing criminal enterprise, DUSTIN [LEE] 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. Id. at 17-37. 5. Pre-trial ñlings and rulings On June 6, 2003, the movant filed a motion to dismiss the capital counts (criminal docket no. 119). He sought dismissal on the basis of double jeopardy. On June 10, 2003, the government notified the movant of its intent to seek the death penalty and outlined the aggravating factors that justified the imposition of the death penalty (criminal docket no. 120). On July 3, 2003, the government filed a resistance to the movant’s motion to dismiss (criminal docket no. 129). On July 21, 2003, the trial court denied the movant’s motion to dismiss (criminal docket no. 131). See United States v. Honken, 271 F.Supp.2d 1097 (N.D.Iowa 2003). Aside from the double jeopardy issue, the trial court addressed evidentiary and other issues that the parties raised prior to trial. Those issues include, but are not limited to, the following: (1) anonymous jury (criminal docket nos. 150,153,169,176,185,186,187, 201, 207, 214, 249); (2) presence of victims during the merits phase (criminal docket nos. 163, 164, 184, 193, 197); (3) exclusion of expert evidence from defense on issue of mental disease, defect or condition (criminal docket nos. 165, 166, 184, 189, 197, 231); (4) alibi defense (criminal docket nos. 8, 167, 168, 184, 190, 197, 211, 215, 237, 240); (5) recusal (criminal docket nos. 170, 196, 205); (6) admission of evidence, which included the maps that Angela Johnson drew (criminal docket nos. 183, 212, 224, 225, 230, 242, 252, 258, 266, 272), the audio recordings of meetings that involved the movant, Gregory Nicholson and Timothy Cutkomp (criminal docket nos. 213, 218, 236, 252, 258, 266, 272), a replica of a firearm (criminal docket nos. 238, 252, 258, 260, 261, 266, 272, 591), out of court statements made by Gregory Nicholson and Terry DeGeus (criminal docket nos. 264, 298, 323) and the judgments and admissions that were part of the 1996 case (criminal docket nos. 180, 194, 198, 252, 258, 266, 272); (7) exclusion of prior bad acts of Timothy Cutkomp (criminal docket nos. 263, 300, 302, 323); (8) use of shackles at trial and other security measures (criminal docket nos. 268, 287, 320, 328); (9) exclusion of escape evidence, literature, publications, book order forms, group membership and privileged conversations (criminal docket nos. 288, 297, 323); (10) exclusion of discussion or evidence of aspects of the death penalty (criminal docket nos. 278, 304, 323); (11) exclusion of evidence from an expert, Dr. Michael M. Gelbort, and a mitigation specialist, Lisa A. Rickert (criminal docket nos. 289, 292, 305, 306, 323); (12) limits on the right of allocution (criminal docket nos. 303, 312, 520, 591); (13) disclosure of attorney fee information (criminal docket nos. 353, 361, 364, 367, 368, 369); (14) agreement as to which jurors should be stricken for cause (criminal docket nos. 342, 344); (15) voir dire (criminal docket nos. 151, 329, 408, 414, 445); and (16) jury instructions (criminal docket nos. 136, 137, 345, 355, 357, 432, 557). 6. Jury selection and trial Prior to trial, the trial court permitted the defense to hire a jury consultant. It also authorized the use of an extensive juror questionnaire, which the jury consultant helped draft, to obtain basic biographical information about each prospective juror, as well as more detailed information about the juror’s views on trial-related issues, such as the death penalty. The questionnaire was distributed to 1000 prospective jurors. If a questionnaire was returned as undeliverable, personnel from the clerk’s office attempted to determine whether the prospective juror had moved or died and would resend the questionnaire to the prospective juror if a different address was obtained. Based on directions frorn the trial court, personnel from the clerk’s office excused jurors who could not be. located. After prospective jurors returned their questionnaires, the parties met on July 26, 2004, to review the questionnaires. As a result of their meeting, the parties agreed to excuse over two hundred prospective jurors for hardship or inability to qualify to serve on the jury. A conference between the trial court and the attorneys for both parties occurred on that same date. On July 29, 2004, and July 30, 2004, the trial court excused potential jurors with a hardship or an extreme view on the death penalty because the circumstances fairly denoted that neither the movant nor the government had any objection to eliminating them. The remaining prospective jurors were randomly sorted into panels of fifteen, and each juror was notified of the day on which his or her panel was to appear for preliminary jury selection. After panel assignment notices were sent out, the trial court excused several additional jurors for hardship based on renewed requests to be excused from service. Jury selection began on August 17, 2004, with the first panel of approximately fifteen prospective jurors appearing for group and individual voir dire. By agreement with the parties, the trial court initiated the jury selection process. However, counsel on both sides were provided considerable latitude in questioning the panel as a whole and in questioning each individual prospective juror. Throughout jury selection, prospective jurors were excused for hardship or on challenges for cause. Prospective jurors not excused on those bases were “qualified” for the final juror pool. After twelve daily panels were interviewed, a sufficient pool of “qualified” prospective jurors was obtained. Once seventy-five prospective jurors were “qualified,” the “qualified pool” was notified to appear for final jury selection. The “qualified pool” of seventy-five prospective jurors appeared on September 8, 2004. After further voir dire, the trial court excused for hardship three prospective jurors and struck for cause one prospective juror. Following the parties’ exercise of their peremptory challenges pursuant to Federal Rule of Criminal Procedure 24, the trial court empaneled twelve trial jurors and six alternate jurors. On September 9, 2004, the merits phase of the movant’s jury trial commenced. During such phase, the jury heard the testimony of sixty-five witnesses, eleven of whom were called by the movant, and viewed hundreds of exhibits that were offered by both parties and nineteen demonstrative exhibits that were presented by the government. On October 7, 2004, or the fifteenth trial day, the presentation of merits phase evidence concluded, and the trial court read most of the final merits phase jury instructions. On October 11, 2004, after closing arguments, the trial court read the remaining jury instructions on deliberations, dismissed the remaining alternate jurors until required for any penalty phase and submitted the merits phase to the jury. ' The jury deliberated approximately two- and-one-half days. On October 14, 2004, it returned guilty verdicts on all seventeen counts (criminal docket no. 513). Before returning its verdicts, the jury made specific findings as to each count. Several days later, the penalty phase of the movant’s trial on the capital counts began. On October 18, 2004, the trial court read the preliminary penalty phase jury instructions, the parties gave their opening statements and the parties presented evidence. The presentation of the defense’s penalty phase evidence continued through the morning of October 19, 2004, and most of the following day. During the late afternoon of October 20, 2004, the government presented rebuttal evidence. Over the course of the penalty phase, the jury heard the testimony of twenty witnesses, nine of whom were called by the movant. In addition, the jury .viewed thirteen government exhibits and sixty-six defense exhibits. On October 21, 2004, the trial court read the final penalty phase jury instructions, and the parties made their closing arguments. Before noon, the trial court dismissed the remaining alternate jurors pending possible recall and submitted the penalty phase case to the jury. Shortly after they began deliberating on October 21, 2004, the jurors chose to end their deliberations early and informed the trial court that they decided not to deliberate the next day, that is, Friday, October 22, 2004. But, before the jurors were escorted by deputy marshals to their dispersal site, Juror 523 asked a deputy clerk of the court for an excuse from work for the remainder of the day and the following day because her boss had been making inappropriate comments to her. After the deputy clerk informed the trial court of the situation, the trial court notified the parties. The trial court investigated Juror 523’s allegation by questioning her during a hearing that same day. On October 22, 2004, the trial court held another hearing, during which it asked Juror 523 whether she had said anything about her boss’s comments to the other jurors. Because the parties agreed, the trial court excused Juror 523 from further deliberations. With respect to the remaining jurors, including the three remaining alternates, the trial court gave them supplemental instructions and held a hearing on October 25, 2004. The trial court asked all of them whether they had heard Juror 523 say anything about comments that her boss had made. After questioning the remaining jurors, the trial court reserved ruling on the movant’s motion for a mistrial. The trial court gave the movant the choice of continuing the penalty phase deliberations with eleven jurors or seating one of the three remaining alternate jurors. Without waiving any objections, the movant chose the latter option. After being given the opportunity to select one of the three remaining alternates, the movant chose Juror 425. After empaneling Juror 425, the trial court gave supplemental explanatory instructions and directed the reconstituted jury to begin penalty phase deliberations anew. On October 27, 2004, the jury made a binding recommendation that the movant be sentenced to death for the murders of the two children, Kandi Duncan and Amber Duncan, and it voted to impose a sentence of life imprisonment for the murders of the three adults, Gregory Nicholson, Lori Duncan and Terry DeGeus (criminal docket no. 547). The verdict form for the ten capital counts required the jurors to state their verdicts in five “steps.” In Step 1, for each of the ten capital counts, the jury found as an “eligibility aggravating factor” that the movant intentionally killed the victim identified in the count under consideration. See 21 U.S.C. § 848(n)(1)(A) (repealed 2006). In Step 2, the jury found that the government had proved all of the “statutory aggravating factors” alleged, with the exception that the jury did not find that the movant committed the killings of the children, Kandi Duncan and Amber Duncan, after substantial planning and premeditation. In Step 3, the jury found that the government had proved all of the “non-statutory aggravating factors” that it asserted. In Step 4, at least one juror found each of the fifteen “mitigating factors” that the movant asserted, but not a single juror found any “residual or lingering doubts as to the movant’s guilt or innocence or his role in the offense, even though those doubts did not rise to the level of ‘reasonable dpubts’ during the ‘merits phase’ of the trial.” Finally, in Step 5, the jury weighed all of the pertinent factors and determined the sentences on each of the ten capital counts. 7. Post-trial rulings and judgment Post-trial, the movant filed a motion for judgment of acquittal or, in the alternative, for a new trial pursuant to Federal Rules of Criminal Procedure 29(c) and 33 (criminal docket nos. 578, 634). The government filed a resistance (criminal docket no. 642). The movant filed a reply (criminal docket no. 664) and a supplemental reply (criminal docket no. 690). On July 29, 2005, the trial court denied the movant’s motion for judgment of acquittal or, in the alternative, for a new trial (criminal docket nos. 693, 695). See generally United States v. Honken, 381 F.Supp.2d 936 (N.D.Iowa 2005). Before doing so, the trial court addressed multiple claims, including, but not limited to, the following: prohibition against being put in jeopardy twice, recusal, security measures, anonymous jury, striking or failing to strike jurors for cause, admissibility of certain evidence, limitation on cross-examination, testimony that related to drug activity that occurred prior to the first year the government charged for the instant offenses, correctness of jury instructions, jury’s findings as to conspiracy murder and CCE murder, jury taint and inquiries put to jurors. On September 20, 2005, a United States probation officer amended and finalized a pre-sentence investigation report regarding the movant (criminal docket no. 710), which the trial court adopted without change. On October 11, 2005, the trial court imposed sentences of death for the murders of Kandi Duncan and Amber Duncan, life imprisonment for the murders of Gregory Nicholson, Lori Duncan and Terry DeGeus and terms of imprisonment for the remaining counts (criminal docket no. 702). 8. Direct appeal The movant appealed his convictions and sentences (criminal docket nos. 704, 706). During appellate proceedings, the movant desired a complete record of all proceedings (criminal docket nos. 748, 749, 754, 755, 756, 759). See United States v. Honken, 477 F.Supp.2d 1004 (N.D.Iowa 2007) (addressing request regarding the record for appellate purposes). In response to the movant’s requests to clarify the record, the government filed a respon