U.S. v. Lua

• Decision Date: 15 January 1998
• Docket Number: No. CR 97-3008-MWB.,CR 97-3008-MWB.
• Citation: 990 F.Supp. 704
• Parties: UNITED STATES of America, Plaintiff, v. Luis LUA; Aurelio Ortiz Jr.; Shawn Wayne Knakmuhs; Benjamin L. Alden; Ricardo Castillo, a/k/a Juan Humberto Castillo-Alvarez; Sarah Ann Kozak; and Ramiro Astello, Defendants.
• Court: U.S. District Court — Northern District of Iowa

Page 704

990 F.Supp. 704

UNITED STATES of America, Plaintiff, v. Luis LUA; Aurelio Ortiz Jr.; Shawn Wayne Knakmuhs; Benjamin L. Alden; Ricardo Castillo, a/k/a Juan Humberto Castillo-Alvarez; Sarah Ann Kozak; and Ramiro Astello, Defendants.

No. CR 97-3008-MWB.

United States District Court, N.D. Iowa, Central Division.

January 15, 1998.

Janet L. Papenthien by oral arguments, Asst. U.S. Atty., Sioux City, IA, for Plaintiff.

Stanley E. Munger of Munger & Reinschmidt, Sioux City, IA, Jennifer A. Bicknese, Whitesell & Bicknese, Iowa Falls, IA, for Defendants.

ORDER REGARDING DEFENDANT KOZAK'S MOTION TO DISMISS

BENNETT, District Judge.

                TABLE OF CONTENTS
                I. INTRODUCTION AND BACKGROUND ....................................  706
                 II. FINDINGS OF FACT ...............................................  707
                III. LEGAL ANALYSIS .................................................  708
                     A. Overview of Cooperation Agreements ..........................  708
                     B. The Existence Of Cooperation Agreement In This Case .........  710
                     C. Authority To Bind The United States .........................  711
                 IV. CONCLUSION .....................................................  714
                

Due process requires the government to adhere to the terms of any immunity agreement it makes. Courts are bound to enforce such agreements when the defendant has fulfilled his or her side of the bargain. The motion to dismiss presently before the court turns on the purported existence of an oral cooperation agreement reached by defense counsel and two state agents, and whether such a cooperation agreement is binding upon the United States.

I. INTRODUCTION AND BACKGROUND

Defendant Sarah Ann Kozak ("Kozak"), along with Luis Lua, Aurelio Ortiz, Jr., Shawn Wayne Knakmuhs, Benjamin L. Alden, Ricardo Castillo, and Ramiro Astello, is charged in a three count indictment returned on July 17, 1997, with kidnapping, in violation of 18 U.S.C. § 1201(a), conspiring to kidnap, in violation of 18 U.S.C. § 1201(c), and using a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924(j). The allegations in the indictment all concern the kidnapping and murder of Gregory Sky Erickson.

Defendant Kozak has filed a motion to dismiss in this case. As grounds for her motion, defendant Kozak asserts that the government has breached a cooperation agreement she had with it and, as a result, its prosecution of her violates her right to due process. The government has filed a timely resistance to defendant Kozak's motion to dismiss. In its resistance, the government contends that no cooperation agreement was ever reached between defendant Kozak and Iowa law enforcement personnel. The government further asserts that even if a cooperation agreement does exist between Kozak and state actors, those state actors did not have authority to offer Kozak transactional immunity from federal prosecution.

An evidentiary hearing on defendant Kozak's motion was held on November 10, 1997, and November 21, 1997, at which the government presented the testimony of Assistant Emmet County Attorney Richard Meyer, Clay County Attorney Michael L. Zenor, Special Agents Kevin B. Curran and Robert Birnie of the Federal Bureau of Investigation ("FBI"), and Special Agent Dan Moser of the Iowa Division of Criminal Investigation ("DCI"). Defendant Kozak offered the testimony of John P. Whitesell and Jennifer A. Bicknese. The United States was represented by Assistant United States Attorney Janet Papenthien. Defendant Kozak was represented by Stanley E. Munger of Munger & Reinschmidt, Sioux City, Iowa, and Jennifer A. Bicknese of Whitesell & Bicknese, Iowa Falls, Iowa.

Although the court initially indicated to the parties that it would set defendant Kozak's motion for further oral arguments following the submission of supplemental briefs by the parties, upon review of the parties' submissions and the record in this case, the court concludes that oral argument would not be beneficial. Therefore, the oral arguments will not be scheduled and defendant Kozak's motion to dismiss is deemed fully submitted.

II. FINDINGS OF FACT

For the purpose of this motion only, the court finds the following facts:

On June 14, 1997, Gregory Sky Erickson's body was found in an abandoned farmhouse in Jackson County, Minnesota. A criminal investigation was commenced involving local, state, and federal law enforcement agencies. On June 17, 1997, a car owned by defendant Kozak's father, Laddie Kozak ("Laddie"), and which defendant Kozak had been using, was seized by law enforcement officers pursuant to a search warrant. Also on June 17, 1997, Dan Moser of the DCI and Paul Soppeland of the Minnesota Bureau of Criminal Apprehension ("BCA") interviewed defendant Kozak. During this interview defendant Kozak admitted driving defendants Luis Lua and Aurelio Ortiz to an apartment in Spencer, Iowa, and driving Lua, Ortiz and Erickson back from Spencer to Estherville, Iowa. Defendant Kozak further told the officers that she had dropped Lua and Erickson off at Lua's house, and dropped Ortiz off at his apartment. She also claimed to have seen Erickson walking away from Lua's house on June 6, 1997, and to having spent the rest of that evening with Lua. The law enforcement authorities investigating the death of Erickson believed these last two statements to be false.

The next day, June 18, 1997, Laddie telephoned John P. Whitesell, an attorney who had previously represented Laddie on other legal matters, and requested an emergency appointment for later that day. Laddie explained to Whitesell that an automobile he owned, but which Kozak had been using, had been seized by law enforcement officers the previous night. Whitesell made arrangements for himself and his law partner, Jennifer Bicknese, to meet with defendant Kozak and her parents, Laddie and Zoe, that evening. Whitesell requested that Bicknese contact DCI Special Agent Dan Moser regarding the seizure of Laddie's automobile.

At approximately 1:45 p.m., Bicknese telephoned the Law Enforcement Center in Estherville and spoke with Special Agent Moser and Assistant Emmet County Attorney Richard Meyer. Bicknese inquired about Laddie Kozak's car. She was informed that the automobile had been seized pursuant to a search warrant in a kidnapping investigation, and that the automobile had been transported to a crime laboratory in St. Paul, Minnesota. Bicknese was also told of the ongoing homicide investigation, and that the investigation was a multi-jurisdictional effort which involved Iowa, Minnesota and federal authorities. Bicknese informed Moser and Meyer that she represented Kozak. Bicknese was then told by Moser that he believed Kozak had been the driver of a car involved in the crime. Bicknese was also told that Kozak had been questioned the previous evening, and that Moser did not believe Kozak had been entirely truthful in her statement to the officers. Bicknese was told that it was in Kozak's interest to be re-interviewed. Bicknese was told that a "window of opportunity" existed for defendant Kozak to be a material witness rather than a defendant but that the window could close quickly due to the rapidly evolving nature of the investigation. Bicknese requested that there be no further contacts with Kozak in Bicknese's absence, and Moser and Meyer agreed to that condition.

Later on June 18, 1997, law enforcement officers arrested Ortiz, Shawn Knakmuhs, and Ben Alden. The three men were interrogated and, as a result of this questioning, the alleged murder weapon was recovered. The issue of possible deals with the perpetrators of the Erickson kidnapping was discussed that evening at the Emmet County Law Enforcement Center. Present at the time was Meyer and Kevin Curran, Supervising Resident Agent for the Federal Bureau of Investigation. Curran stated his belief that there should be no deal for Kozak because she had lied to law enforcement officers the previous night.

At approximately 6:30 p.m. on June 18, 1997, Kozak and her parents met with Whitesell and Bicknese. Bicknese and Whitesell then met privately with Kozak for three hours. Whitesell told Kozak that there was an opportunity for her to be a material witness rather than a defendant in the criminal case being prepared regarding Erickson's kidnapping. Kozak informed Whitesell that she would take the opportunity to be a material witness. Whitesell requested that Bicknese contact the authorities the next morning to ascertain what was required for Kozak to become a material witness.

On June 19, 1997, at approximately 8:44 a.m., Bicknese contacted Moser and Meyer regarding having Kozak take advantage of the window of opportunity spoken of the previous day. Bicknese was told that it was uncertain whether it was going to be a federal case or a state case, and that the situation was "very fluid" in that information was being developed constantly. Meyer informed Bicknese that the "window of opportunity" to negotiate a deal was closing rapidly because of the rapid pace at which the case was developing, and that Kozak's information might not be needed by the time she was willing to provide it. Meyer further told Bicknese that if she wanted to attempt to negotiate a deal she and Kozak would have to come into the law enforcement center immediately.

At approximately 9:17 a.m., Whitesell called Moser and informed him that he and Bicknese were on their way to Estherville. Whitesell told Moser that they were going to take advantage of the window of opportunity offered to defendant Kozak. Whitesell and Bicknese canceled their other appointments for the day and drove from their law office in Iowa Falls, Iowa, to the Kozak residence in Estherville.

Following Whitesell's telephone call to Moser, a discussion ensued at the law enforcement center over whether a deal would be offered to Kozak. Among those present at the meeting were Moser, Meyer, Curran, and Clay County Attorney Michael Zenor. At the meeting...