State v. Honken
25 Neb. Ct. App. 352 (2017)
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Rule of Law:
The affirmative withdrawal of one co-conspirator from a two-person conspiracy terminates that conspiracy. A subsequent agreement with a new co-conspirator to achieve the same criminal objective, formed after a discernible break in time, constitutes a new and separate conspiracy for the purposes of the Double Jeopardy Clause.
Facts:
- On January 18, 2016, Robert S. Honken met Derrick Shirley and entered into an agreement for Shirley to kill Honken's wife in exchange for monetary compensation.
- Honken provided Shirley with information about his wife's routine and gave him $400 for the purchase of a firearm, a .22-caliber rifle, which was acquired on February 10, 2016.
- Shirley later informed Honken that he had 'cold feet' and would not proceed with the murder plan.
- On February 16, 2016, Honken sent a final text message to Shirley acknowledging and thanking him for 'backing down' from the agreement.
- After an eight-day period with no co-conspirator, Honken contacted Mario Flores on February 24, 2016, to find a new person to kill his wife.
- Flores reported Honken to the police, who arranged for an undercover investigator to pose as a hitman.
- On February 29, 2016, Honken met with the undercover investigator, providing a photograph of his wife, a map of her residence, and a $500 down payment for the murder.
- Honken was arrested shortly after his meeting with the undercover investigator.
Procedural Posture:
- The State charged Robert S. Honken in the Hamilton County Court with two counts of conspiracy to commit first degree murder.
- After a preliminary hearing, the county court found probable cause and bound the case over to the district court.
- In the district court, Honken filed a plea in abatement, arguing that the evidence showed only one conspiracy, which the court overruled.
- Honken then filed a motion to dismiss one count on double jeopardy grounds.
- The State filed an amended information that specified distinct time periods for each of the two alleged conspiracies.
- Honken waived a jury trial, and after a bench trial on stipulated facts, the district court overruled the motion to dismiss and found Honken guilty on both counts.
- The district court sentenced Honken to concurrent terms of 45 to 50 years' imprisonment for each conviction.
- Honken appealed his convictions and sentences to the Nebraska Court of Appeals.
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Issue:
Does convicting a defendant of two separate counts of conspiracy to commit murder violate the Double Jeopardy Clause when the defendant first conspired with one individual who affirmatively withdrew, and then, after a 10-day break, conspired with a different individual to achieve the same objective?
Opinions:
Majority - Riedmann, Judge
No, convicting the defendant of two separate counts of conspiracy does not violate the Double Jeopardy Clause. The court determined that Honken engaged in two separate and distinct conspiracies rather than one continuous one. The first conspiracy terminated when Shirley, his only co-conspirator, affirmatively withdrew by communicating his abandonment of the plan, which Honken acknowledged. This withdrawal, followed by a 10-day break in conspiratorial activity, created a clear separation before Honken formed a new agreement with a new person (the undercover officer). Applying a 'totality of the circumstances' test, the court found dispositive differences in time, identity of co-conspirators, and the specific overt acts taken in furtherance of each plan, thus justifying two separate convictions.
Analysis:
This case clarifies the legal standard in Nebraska for determining when multiple criminal agreements constitute separate conspiracies versus a single, continuous one for double jeopardy analysis. By adopting the 'totality of the circumstances' test and emphasizing that the withdrawal of a co-conspirator terminates a two-person conspiracy, the court establishes a clear framework for prosecutors. This precedent allows for separate charges when a defendant's initial criminal plan fails and they recruit new accomplices after a discernible break, preventing defendants from shielding subsequent criminal agreements under the umbrella of a single, ongoing objective.
