United States District Court, N.D. Iowa, Western Division
REPORT AND RECOMMENDATION
LEONARD T. STRAND, Magistrate Judge.
This case is before me on a motion (Doc. No. 23) by defendant Jack Lobsinger to dismiss the indictment. Plaintiff (the Government) has filed a resistance (Doc. No. 25). I conducted an evidentiary hearing on June 30, 2015. Defendant appeared personally and with his attorney, Assistant Federal Public Defendant Brad Hansen. Assistant United States Attorney Tim Duax appeared for the Government. Lobsinger presented testimony from Jack Bjornstad and Kristi Kuester. The Government presented testimony from Monica Rehnstrom. Defendant's exhibits A through F, along with Government's exhibits 1 through 4, were received without objection. The motion has been referred to me for the preparation of a report and recommended disposition.
I. PROCEDURAL BACKGROUND
On April 23, 2015, the grand jury returned an indictment (Doc. No. 1) charging Lobsinger with receipt of child pornography and possession of child pornography. He has entered pleas of not guilty to both charges and his trial is scheduled to begin August 3, 2015. On May 22, 2015, he filed a motion to dismiss the indictment on grounds that it is contrary to the terms of a plea agreement in a separate state court action. Specifically, he contends that on March 13, 2015, he entered into an agreement with the Clay County, Iowa, Attorney under which Lobsinger 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 Government contends that even if that promise was made, it is not binding on the Government because the state prosecutor had no authority to make it.
II. FINDINGS OF FACT
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 wrote updates 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) he could 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. ...