MARK W. BENNETT, District Judge.
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.
In his Report and Recommendation, Judge Strand made the following factual findings:
Report and Recommendation at 2-6.
I review the magistrate judge's report and recommendation pursuant to the statutory standards found in 28 U.S.C. § 636(b)(1):
28 U.S.C. § 636(b)(1); see FED. R. CIV. P. 72(b) (stating identical requirements); N.D. IA. L.R. 72, 72.1 (allowing the referral of dispositive matters to a magistrate judge but not articulating any standards to review the magistrate judge's report and recommendation). While examining these statutory standards, the United States Supreme Court explained:
Thomas v. Arn, 474 U.S. 140, 154 (1985). Thus, a district court may review de novo any issue in a magistrate judge's report and recommendation at any time. Id. If a party files an objection to the magistrate judge's report and recommendation, however, the district court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). In the absence of an objection, the district court is not required "to give any more consideration to the magistrate's report than the court considers appropriate." Thomas, 474 U.S. at 150.
De novo review, of course, is nondeferential and generally allows a reviewing court to make an "independent review" of the entire matter. Salve Regina College v. Russell, 499 U.S. 225, 238 (1991) (noting also that "[w]hen de novo review is compelled, no form of appellate deference is acceptable"); see Doe v. Chao, 540 U.S. 614, 620-19 (2004) (noting de novo review is "distinct from any form of deferential review"). The de novo review of a magistrate judge's report and recommendation, however, only means a district court "`give[s] fresh consideration to those issues to which specific objection has been made.'" United States v. Raddatz, 447 U.S. 667, 675 (1980) (quoting H.R. Rep. No. 94-1609, at 3, reprinted in 1976 U.S.C.C.A.N. 6162, 6163 (discussing how certain amendments affect 28 U.S.C. § 636(b))). Thus, while de novo review generally entails review of an entire matter, in the context of § 636 a district court's required de novo review is limited to "de novo determination[s]" of only "those portions" or "specified proposed findings" to which objections have been made. 28 U.S.C. § 636(b)(1); see Thomas, 474 U.S. at 154 ("Any party that desires plenary consideration by the Article III judge of any issue need only ask." (emphasis added)). Consequently, the Eighth Circuit Court of Appeals has indicated de novo review would only be required if objections were "specific enough to trigger de novo review." Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989). Despite this "specificity" requirement to trigger de novo review, the Eighth Circuit Court of Appeals has "emphasized the necessity . . . of retention by the district court of substantial control over the ultimate disposition of matters referred to a magistrate." Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994). As a result, the Eighth Circuit Court of Appeals has been willing to "liberally construe[]" otherwise general pro se objections to require a de novo review of all "alleged errors," see Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995), and to conclude that general objections require "full de novo review" if the record is concise, Belk, 15 F.3d at 815 ("Therefore, even had petitioner's objections lacked specificity, a de novo review would still have been appropriate given such a concise record."). Even if the reviewing court must construe objections liberally to require de novo review, it is clear to me that there is a distinction between making an objection and making no objection at all. See Coop. Fin. Assoc., Inc. v. Garst, 917 F.Supp. 1356, 1373 (N.D. Iowa 1996) ("The court finds that the distinction between a flawed effort to bring objections to the district court's attention and no effort to make such objections is appropriate."). Therefore, I will strive to provide de novo review of all issues that might be addressed by any objection, whether general or specific, but will not feel compelled to give de novo review to matters to which no objection at all has been made.
In the absence of any objection, the Eighth Circuit Court of Appeals has indicated a district court should review a magistrate judge's report and recommendation under a clearly erroneous standard of review. See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting when no objections are filed and the time for filing objections has expired, "[the district court judge] would only have to review the findings of the magistrate judge for clear error"); Taylor v. Farrier, 910 F.2d 518, 520 (8th Cir. 1990) (noting the advisory committee's note to Fed. R. Civ. P. 72(b) indicates "when no timely objection is filed the court need only satisfy itself that there is no clear error on the face of the record"); Branch, 886 F.2d at 1046 (contrasting de novo review with "clearly erroneous standard" of review, and recognizing de novo review was required because objections were filed). I am unaware of any case that has described the clearly erroneous standard of review in the context of a district court's review of a magistrate judge's report and recommendation to which no objection has been filed. In other contexts, however, the Supreme Court has stated the "foremost" principle under this standard of review "is that `[a] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Thus, the clearly erroneous standard of review is deferential, see Dixon v. Crete Med. Clinic, P.C., 498 F.3D 837, 847 (8th Cir. 2007) (noting a finding is not clearly erroneous even if another view is supported by the evidence), but a district court may still reject the magistrate judge's report and recommendation when the district court is "left with a definite and firm conviction that a mistake has been committed," U.S. Gypsum Co., 333 U.S. at 395.
Even though some "lesser review" than de novo is not "positively require[d]" by statute, Thomas, 474 U.S. at 150, Eighth Circuit precedent leads me to believe that a clearly erroneous standard of review should generally be used as the baseline standard to review all findings in a magistrate judge's report and recommendation that are not objected to or when the parties fail to file any timely objections, see Grinder, 73 F.3d at 795; Taylor, 910 F.2d at 520; Branch, 886 F.2d at 1046; see also FED. R. CIV. P. 72(b) advisory committee's note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation."). In the context of the review of a magistrate judge's report and recommendation, I believe one further caveat is necessary: a district court always remains free to render its own decision under de novo review, regardless of whether it feels a mistake has been committed. See Thomas, 474 U.S. at 153-54. Thus, while a clearly erroneous standard of review is deferential and the minimum standard appropriate in this context, it is not mandatory, and I may choose to apply a less deferential standard.
As noted above, Lobsinger has filed objections to Judge Strand's Report and Recommendation. I, therefore, undertake the necessary review of Judge Strand's recommended disposition of Lobsinger's motion to dismiss.
Lobsinger first objects to Judge Strand's finding that Kristi Kuester, the current Clay County Attorney and an assistant Clay County Attorney at the time Lobsinger signed the plea agreement, "did not review the Plea Agreement carefully." Report and Recommendation at 4. Lobsinger points out that at the evidentiary hearing, Kuester testified as follows on direct examination:
Hearing Tr. at 43. In addition, Lobsinger points to the following testimony of Kuester on cross-examination:
Hearing Tr. at 50.
Kuester's testimony clearly indicates that she does not believe that she read the plea agreement before signing and filing it. Accordingly, because there is no basis in this record to find that Kuester read the plea agreement before signing and filing it, Lobsinger's objection is sustained.
Lobsinger's next objection again concerns the testimony of Kuester. In the Report and Recommendation, Judge Strand made the following finding:
Report and Recommendation at 5. This finding apparently is based on the following testimony from Kuester:
Hearing Tr. at 39-40.
Lobsinger objects to giving weight to Kuester's testimony on this issue and argues that the following four circumstances weigh against crediting Kuester's testimony: (1) the lack of evidence or testimony corroborating Kuester's account; (2) her signing and filing the plea agreement in which she averred that the statements in it were "true and correct"; (3) Kuester's incentive to undermine the plea agreement in light of her office's decision to revoke the plea agreement in its entirety because the "offer was too good and . . . didn't do justice for the victim," Hearing Tr. at 46; and (4) her testimony is not corroborated by Exhibit B, Houchins's March 17, 2015, notice filing.
Although I must conduct my own de novo review of the record, Judge Strand's assessment of Kuester's credibility is entitled to some weight and deference, since he had the opportunity to observe her demeanor. There can be no doubt that seeing a witness testify live assists the finder of fact in evaluating the witness's credibility. As Judge Learned Hand explained:
Dyer v. MacDougall, 201 F.2d 265, 268-69 (2d Cir. 1952) (footnote omitted). Similarly, in Anderson v. City of Bessemer, 470 U.S. 564 (1985), the United States Supreme Court recognized that: "[O]nly the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said." Id. at 575. Judge Strand was able to see Kuester's physical reactions to questions, to assess her demeanor, and to hear the tone of her voice—matters that cannot be gleaned from a written transcript. See id.; see also United States v. $63,530.00 in U.S. Currency, 781 Fed/App'x 949, 957 (8th Cir. 2015) (quoting Anderson, 470 U.S. at 575); Ms. S. ex rel G. v. Vashon island Sch. Dist., 337 F.3d 1115, 1127 (9th Cir. 2003) ("`Live testimony enables the finder of fact to see the witness's physical reactions to questions, to assess the witness's demeanor, and to hear the tone of the witness's voice-matters that cannot be gleaned from a written transcript.'") (quoting United States v. Mejia, 69 F.3d 315, 315 (9th Cir. 1985)); United States v. Zeigler, 994 F.2d 845, 849 (D.C. Cir. 1993) (observing that unlike other forms of evidence, "[d]emeanor evidence is not captured by the transcript; when the witness steps down, it is gone forever."); United States v. Hood, 493 F.2d 677, 680 (9th Cir. 1974) (trial judge in unique position to observe witnesses demeanor while appellate court only has "the cold record, which is sterile in comparison"); In re Case Nova of Lansing, Inc., 146 B.R. 370, 377 (Bankr. W.D. Mich. 1992) (stating that "the trial court, viewing the demeanor, body language, tone, and reactions of the live witnesses, is in a better position to evaluate credibility than an appellate court having only the benefit of a written transcript
I do not find the four circumstances identified by Lobsinger, either individually or collectively, sufficient to undermine Kuester's testimony on this issue. In fact, Houchins's March 17, 2015, notice filing actually supports Kuester's testimony more than it contradicts it. In that notice, Houchins states, in relevant part:
Ex. B at ¶ 3. Houchins's statement is consistent with that portion of Kuester's testimony concerning the terms of a plea agreement that would likely satisfy the United States Attorney and result in that office not filing child pornography charges against Lobsinger. After a thorough review of both the hearing transcript and the evidence, I conclude that Kuester's testimony was credible. Accordingly, Judge Strand's determination regarding Kuester's credibility is upheld and Lobsinger's objection is denied.
Lobsinger further objects to Judge Strand's finding that Bjornstad's testimony, "that it was his understanding throughout the plea negotiations that the United States Attorney would forego federal charges if Lobsinger plead guilty to any state charge that would require some prison time," was "entitled to no weight" "[b]ecause Bjornstad had no contact with any representative of the federal government during plea negotiations, his alleged understanding could not have come from any words or actions of the United States Attorney's Office." Report and Recommendation at 10 n.2.
Bjornstad testified that he never contacted the United States Attorney's Office to secure a promise that it would forgo federal charges if Lobsinger pleaded guilty to certain state charges. Moreover, Bjornstad testified that he had never spoke to any Assistant United States Attorney or federal agent regarding Lobsinger. He also admitted that the federal government was not a party to the plea agreement and that the plea agreement was never signed by any federal agent. Indeed, the document has no place for a federal government agent to sign. From my review of both the hearing transcript and the evidence, there is no evidence in the record that Bjornstad's understanding, regarding the terms under which the United States Attorney was willing to forego bringing federal charges against Lobsinger, came from any action of the United States Attorney's Office. Accordingly, Lobsinger's objection is denied.
Lobsinger objects to Judge Strand's conclusion the Clay County Attorney's Office lacked implied actual authority to bind the United States Attorney to the promise that he would not face federal charges. In support of his objection, Lobsinger points out that federal and Iowa state prosecutors and law enforcement cooperated in their investigations of Lobsinger. Lobsinger also notes that the United States Attorney did not bring child pornography charges against Lobsinger for nearly two years after the execution of a federal search warrant and more than one year after Lobsinger was charged with sexual abuse in state court. He argues that the federal government's silence constituted a manifestation of implied actual authority to the Clay County Attorney's Office.
Generally speaking, the determination as to whether there has been a breach of a plea agreements is governed by the law of contracts. See Puckett v. United States, 556 U.S. 129, 137 (2009); Margalli-Olvera v. INS, 43 F.3d 345, 351 (8th Cir. 1994). Over a half-century ago, the United States Supreme Court warned that: "[A]nyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority." Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947). It is black letter law in this Federal Circuit, as well as others, that "`state prosecutors cannot bind federal prosecutors without the latter's consent and knowledge.'" Hendrix v. Norris, 81 F.3d 805, 807 (8th Cir. 1996) (quoting United States v. Fuzer, 18 F.3d 517, 520 (7th Cir. 1994)); see United States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007) ("The federal government may become a party to state proceedings if it has knowledge of those proceedings and consents to the representations made by state prosecutors."); Montoya v. Johnson. 226 F.3d 399, 406 (10th Cir. 2000) (quoting Hendrix, 81 F.3d at 807); see also United States v. Cordova-Perez, 65 F.3d 1552, 1554 (9th Cir. 1995) ("[I]t is well settled that states cannot bind the federal government to the terms of a plea agreement to which the federal government is not a party."); United States v. Roberson, 872 F.2d 597, 611 (5th Cir. 1989) (holding that state immunity agreement did not bind federal prosecutor); Fourth Street Pharmacy v. United States Dep't of Justice, 836 F.2d 1137, 1139 (8th Cir. 1988) ("[N]either plea agreements negotiated by state prosecutors to which the federal government is not a party, nor subjective expectations of the parties regarding future federal action prevent federal agencies from independently enforcing compliance with federal law."); United States v. Barker, 542 F.2d 479, 482 (8th Cir. 1976) ("The United States as a sovereign is not precluded from enforcing its laws by the grant of immunity of another sovereign, in this case the state.");
In Barker, the Eighth Circuit Court of Appeals explained the legal rationale undergirding this principle:
Barker, 542 F.2d at 482-83. The Fifth Circuit Court of Appeals expressed similar sentiments in Roberson:
Roberson, 872 F.2d at 611
In this instance, Lobsinger, who has the burden of production, has failed to prove that the United States Attorney was a party to his plea agreement with the Clay County Attorney's Office. The letter from Bjornstad to Houchins on February 2, 2014, relating the details of a proposed plea agreement, clearly demonstrates that Bjornstad did not believe Houchins had authority to bind the United States Attorney. Why else would Bjornstad demand in that letter: "We want confirmation writing from the U.S. Attorney's office." Bjornstad Letter at 1, Government's Ex. 1 at 1. In his reply letter, it is perfectly clear that Houchins was speaking only for the Clay County Attorney's Office and not the federal government. There is absolutely no mention of the federal government in that letter. Similarly, in the text of plea agreement which followed, as drafted by Houchins, again makes no mention of the federal government or the disposition of possible federal charges.
Lobsinger points to the fact that federal and Iowa state prosecutors and law enforcement cooperated in their investigations as supporting his theory of implied actual authority. The flaw in Lobsinger's argument is that he has failed to demonstrate that any federal officer or agent gave express authority to the Clay County Attorney's Office to negotiate a plea agreement with Lobsinger on behalf of the United States Attorney. Neither testimony nor documentary evidence was offered that such a delegation of authority occurred during the investigation. Implied actual authority is "incidental to a grant of express authority." Margalli-Olvera, 43 F.3d at 353. It is the authority to do "what is necessary, usual, and proper" to perform one's duties or "to act in a manner in which an agent believes the principal wishes the agent to act based on the agent's reasonable interpretation of the principal's manifestation." RESTATEMENT (THIRD) OF AGENCY § 2.01 (2006). Because implied actual authority must extend from some express grant of authority and no one in the Clay County Attorney's office had actual authority to act for the United States Attorney, it follows that no one from that office had any implied actual authority to bind the United States Attorney. Accordingly, Lobsinger's objection is denied.
Finally, Lobsinger objects to Judge Strand's failure to recommend dismissal of the federal charges as the appropriate remedy. Judge Strand did not reach the issue of the appropriate remedy because he found that the plea agreement was not binding on the United States Attorney. Because I agree with Judge Strand's conclusion, Lobsinger's objection is denied as moot.
Therefore, for the reasons discussed above, I, upon a de novo review of the record, accept Judge Strand's report and Recommendation and deny defendant Lobsinger's motion to dismiss.
