United States v. Lobsinger

• Decision Date: 05 August 2015
• Docket Number: No. CR15-4024-MWB,CR15-4024-MWB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JACK LOBSINGER, Defendant.
• Court: U.S. District Court — Northern District of Iowa

UNITED STATES OF AMERICA, Plaintiff, v. JACK LOBSINGER, Defendant.

No. CR15-4024-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

August 5, 2015

MEMORANDUM OPINION AND ORDER REGARDING MAGISTRATE'S REPORT AND RECOMMENDATION CONCERNING DEFENDANT'S MOTION TO DISMISS

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND .............................................. 2

A. Procedural Background ........................................................... 2

B. Factual Background ............................................................... 3

II. LEGAL ANALYSIS ........................................................................ 8

A. Standard Of Review ................................................................ 8

B. Objections To Report And Recommendation ................................ 13

1. Factual objections ........................................................ 13

a. Kuester's reading of the plea agreement .................... 13

b. Kuester's credibility .............................................. 14

c. Bjornstad's understanding ..................................... 18

2. Legal objections .......................................................... 19

a. Implied actual authority ........................................ 19

b. Specific performance of the plea agreement ................ 22

III. CONCLUSION ............................................................................ 23

I. INTRODUCTION AND BACKGROUND

A. Procedural Background

On April 23, 2015, an indictment was returned charging defendant Jack Lobsinger with receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1) (Count 1) and possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2) (Count 2). Lobsinger subsequently filed a motion to dismiss in which he seeks dismissal of the indictment on ground that it is contrary to the terms of a plea agreement in an Iowa state court case. Specifically, Lobsinger contends that he entered into an agreement with the Clay County Attorney under which he agreed to plead guilty to two counts of lascivious acts with a child in exchange for a promise that he would face no federal child pornography charges. The prosecution filed a timely resistance to Lobsinger's motion. The prosecution argues that even if the Clay County Attorney made a promise to Lobsinger, it is not binding on the prosecution because the Clay County Attorney had no authority to make it.

Lobsinger's motion to dismiss was referred to United States Magistrate Judge Leonard T. Strand, pursuant to 28 U.S.C. § 636(b). Judge Strand conducted an evidentiary hearing and then filed a Report and Recommendation in which he recommends that Lobsinger's motion to dismiss be denied. In his Report and Recommendation, Judge Strand found that the State of Iowa, through the Clay County Attorney, promised Lobsinger in the plea agreement that no federal charges would be filed. However, Judge Strand next concluded that the prosecution was not a party to the plea agreement and there was no evidence that the Clay County Attorney had any authority to bind the United States Attorney. Thus, Judge Strand determined that the plea agreement's promise of no federal charges is not binding on the prosecution.Lobsinger has filed objections to Judge Strand's Report and Recommendation. The prosecution has not filed a response to Lobsinger's objections. I, therefore, undertake the necessary review of Judge Strand's recommended disposition of Lobsinger's motion to dismiss.

B. Factual Background

In his Report and Recommendation, Judge Strand made the following factual findings:

Homeland Security Investigations (HSI) began investigating Lobsinger in February 2013. On April 17, 2013, a federal search warrant was issued for his residence in Spencer, Iowa, authorizing a search for evidence relating to child pornography. On April 24, 2013, agents from HSI and the Federal Bureau of Investigation (FBI), along with state and local law enforcement officers, executed the search warrant. A local law enforcement officer located Lobsinger's computer during the search and turned it over to the federal agents. A state police officer and agents from HSI and the FBI interviewed Lobsinger during the search. During that interview, Lobsinger allegedly admitted to both the possession of child pornography and the molestation of a child.

On March 21, 2014, the State of Iowa charged Lobsinger with one count of sexual abuse in the second degree, a Class B felony. If convicted on that charge, Lobsinger would face an indeterminate prison sentence not to exceed 25 years and would be required by Iowa law to serve at least seventy percent of that sentence (17.5 years). While no federal charges were filed at that time, HSI Special Agent John Voeltz and Assistant United States Attorney Mark Tremmel monitored the state court proceedings. Voeltz wroteupdates to the case file while Tremmel had various communications with the Clay County Attorney's office.

Jack Bjornstad, Lobsinger's state court defense attorney, testified that from the very beginning of the state court case he had discussions with Mike Houchins, then the Clay County Attorney, about a plea agreement that would preclude the initiation of federal charges. According to Bjornstad, Houchins told him that the United States Attorney would not prosecute Lobsinger on federal child pornography charges if he entered into a state court plea agreement that required him to serve some amount of prison time. Bjornstad testified that this was his understanding during the entire duration of his negotiations with Houchins. However, Bjornstad admitted that he had no contact with any representative of the federal government at any stage of the plea negotiations.

On February 2, 2015, Bjornstad wrote to Houchins and proposed that Lobsinger plead guilty to two counts of lascivious acts with a child, with the sentences on each count running concurrently. Ex. 1. After describing the proposal, Bjornstad wrote:

Also, we understand that the feds would not pursue any child pornography charges. We want confirmation writing from the U.S. Attorney's office.

Id. The charge of lascivious acts with a child is a Class D felony under Iowa law and is punishable by an indeterminate term of imprisonment not to exceed five years. Kristi Kuester, who was an Assistant Clay County Attorney at the time and now serves as the County Attorney, testified that no mandatory minimum sentence would apply.

Houchins responded to the proposal with a letter dated February 18, 2015. Ex. 2. Houchins rejected the proposal but offered two alternatives: (1) Lobsinger could plead guilty to a Class C felony and receive a ten-year sentence or (2) hecould plead guilty to two Class D felonies and serve the five-year sentences consecutively. Id. Houchins' letter made no reference to possible federal charges. Id.

At some point after sending his February 18 letter, Houchins prepared a written guilty plea (Plea Agreement) and forwarded it to Bjornstad for review. As drafted by Houchins, the Plea Agreement provided that Lobsinger would plead guilty to two counts of lascivious acts with a child (Class D felonies) with the sentences on each count running consecutively for a total sentence of ten years. Ex. A at 1-2. After receiving the proposed Plea Agreement, Bjornstad added the following handwritten notation on page 2:

* The state has agreed to and promised no federal child pornography or other charges.

Id. at 2. Bjornstad placed his own initials (JBB) in the left margin, next to his handwritten notation. Id. He then signed the Plea Agreement, as did Lobsinger. Id. at 4. The document was then sent to Houchins' office via email.

Unfortunately, these events occurred during a time when Houchins was suffering from an illness that would soon take his life. Kuester testified that Houchins was unable to work at his office after February 1, 2015, but instead worked from his home to the extent his health allowed. When the Plea Agreement was returned to his office via email, administrative assistant Monica Rehnstrom printed the document and called Houchins at his home to tell him that it had arrived. Rehnstrom testified that she noticed the handwritten change and read that change to Houchins over the telephone. Houchins then directed Rehnstrom to have Kuester sign and file the document. Rehnstrom took the Plea Agreement to Kuester and had her sign it. Kuester does not recall noticing the handwritten change and testified that she did not review the Plea Agreement carefully because Rehnstrom advised her that Houchins had approved it.

The Clay County Attorney's office electronically filed the Plea Agreement with the Clay County Clerk of Court on Friday, March 13, 2015. Four days later, Houchins filed a document entitled "Notice Regarding Written Guilty Plea." Ex. B. Rehnstrom testified that Houchins dictated the contents of the notice to her by telephone on Monday, March 16, or Tuesday, March 17. The notice states, in relevant part:

3. Originally, there was some discussion between the State and defense counsel regarding the federal charges. At that time, the undersigned informed defense counsel if the Defendant would plead to a B felony as originally charged, it was my understanding that the Federal government would not prosecute.

4. However, that is not the situation, and the State has not entered into an agreement to waive federal prosecution.

Id. Bjornstad filed a response to the notice the following day. Ex. C. The response did not expressly deny the statements made in paragraph 3 of Houchins' notice. Instead, Bjornstad stated: "The Guilty Plea was sent to the State for review of terms and acceptance by signature and the State submitted the Guilty Plea to the Court for filing on March 13, 2015." Id.

On March 18, 2015, Voeltz updated Tremmel on the status of the state court case and provided him with a copy of the Plea Agreement. Tremmel then wrote a letter to

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