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United States v. Lindemuth

United States District Court, D. Kansas

August 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
KENT E. LINDEMUTH (01), Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         This matter comes before the court on defendant Kent E. Lindemuth's Motion to Dismiss and in the Alternative to Sever Count 117. Doc. 76. In his motion, Mr. Lindemuth asserts four arguments why the court should dismiss or sever Count 117: (1) the charge fails to state a crime as a matter of law; (2) prosecuting him on this charge violates an oral agreement between the government and defendant; (3) the charge is improperly joined in the Superseding Indictment; and (4) the joinder of the offense is prejudicial to the defendant. Id. The government filed an Opposition to the Motion. Doc. 79. On July 24, 2017, the court held a hearing and ruled on all of defendant's arguments except his second one. This order decides the portion of Mr. Lindemuth's motion relying on a purported oral agreement not to prosecute.

         In brief, Mr. Lindemuth contends that his oral agreement with the government bars the government from prosecuting him on Count 117. See Doc. 79 at 5. The court also has received a “Joint Stipulation of Facts” filed and signed by Mr. Lindemuth. Doc. 87. The prosecutor confirmed at the July 24 hearing that, indeed, the United States had stipulated to the facts presented in Doc. 87. See Doc. 85 at 2. On August 8, 2017, the court held an evidentiary hearing to hear any additional evidence about this oral agreement. Neither party offered any. Also, the court heard oral argument and now is ready to rule. For reasons explained below, the court denies defendant's Motion to Dismiss, but grants defendant's Motion to Sever Count 117.

         I. Factual Background

         On June 1, 2016, a federal grand jury indicted Mr. Lindemuth on 103 counts of bankruptcy fraud in violation of 18 U.S.C. §§ 152(1)-152(2). Doc. 1. The indictment charges that defendant fraudulently concealed 103 firearms from his creditors during a bankruptcy proceeding. Id. On December 12, 2016, the court set a trial date for May 9, 2017. Two days later, a grand jury indicted Mr. Lindemuth on 12 additional counts charging additional acts of bankruptcy fraud, money laundering, receipt of ammunition while under indictment, and receipt of firearms while under indictment. Doc. 32. Soon after, the government claims, law enforcement officials learned that Mr. Lindemuth allegedly possessed more firearms and he had stored them in a safe on one of his Topeka properties.

         A. The December Hearing

         At a bond revocation hearing on December 27, 2016, Mr. Lindemuth claims that the parties entered into an oral agreement about the newly discovered firearms, and the court reporter recorded the agreement contemporaneously. According to the parties' stipulation, an Assistant United States Attorney advised the court as follows:

We've asked the defense to provide us a combination to the safe so that we can assure an inventory and we can secure the firearms. And I have advised them, and I will say it on the record, that if they voluntarily turn the contents of the safe over I will not prosecute him for those firearms.

         Doc. 79 (citing Tr. of Revocation Hr'g at 18).

         B. After the December Hearing

         On January 3, 2017, the prosecutor emailed Mr. Babbit, one of Mr. Lindemuth's attorneys. His message asked Mr. Babbit: “Have you supplied Agent Gentine with the combination yet? If not please explain why!” Doc 87 at 2. On January 6, 2017, Mr. Babbit responded:

Rich, We have 3 or 4 combinations that may work on the wall safe at 200 S.W. Jackson. I propose that Mr. Alvey simply ask Mr. Hendershot to assist him in checking on the safe and, if a combination works, any guns inside can be moved to the storage units for inventory along with the rest of the firearms. The inventory process is scheduled to continue[] beginning Wednesday of next week so that is when I would expect Mr. Alvey and Mr. Hendershot could address the matter. If you wish Mr. Gentine involved as well or in place of Mr. Hendershot that is fine. Given Mr. Hendershot's current involvement in the inventory process, it makes sense to us for him to assist Mr. Alvey.

Id. The next day, the prosecutor responded:

Kevin, thanks for the update! I am presently in trial with Scott which is presently occupying all of our time. I spoke with Randy about the safe issues and learned that he has been in contact with your investigator and it makes sense for them to jointly attempt to execute access and inventory the firearms in the vault.

Id.

         About two months passed before the parties communicated again about matters relevant to this motion. Then, on March 2, 2017, the government sent another email to Mr. Babbit. It stated: “The combinations which were provided do not allow the safe to be opened. Accordingly, please provide us with a good combination or obtain from your client authority to allow the government to force the opening of the safe.” Id. Mr. Babbit did not respond to the prosecutor, and the prosecutor did not follow up with him. Doc. 76 at 5; Doc. 87 at 2.

         The government then secured a search warrant authorizing law enforcement to access Mr. Lindemuth's safe unilaterally. On April 12, 2017, the government executed that warrant and ...


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