United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
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.
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
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
The December Hearing
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.
(citing Tr. of Revocation Hr'g at 18).
After the December Hearing
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.
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.
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