Iowa judge, prosecutors clash over sentencing

Clark Kauffman | The Des Moines Register

DES MOINES, Iowa -- One of Iowa's most prominent federal judges is accused of improperly playing the role of "prosecutor-in-chief" in criminal cases by ordering the U.S. Attorney's Office to provide evidence that can result in longer prison sentences, court records show.

U.S. District Court Judge Stephanie Rose has complained to U.S. Attorney for the Southern District of Iowa Nicholas Klinefeldt that his prosecutors aren't providing her with information that can be used to extend prison sentences, according to a Des Moines Register review of emails that are part of a court case and were recently unsealed.

Court transcripts show Rose, a former prosecutor who is now in her first year on the bench, has clashed with prosecutors over that issue in at least three criminal cases this year.

In a case involving convicted drug dealer Bryan Holm, Rose ordered prosecutors to provide evidence that could extend Holm's prison sentence on a weapons charge. When they refused, citing a plea agreement they had signed, Rose called a police officer to the stand, questioned the officer herself and imposed a sentence that was two to three years longer than what prosecutors had contemplated.

Rose then sent prosecutors an email comparing herself to the comic book superhero the Hulk, saying there was "a lesson" there for attorneys: "You won't like me when I'm angry."

Holm's attorney, Dean Stowers, says in court papers his client was "caught in the crossfire" between Rose and federal prosecutors who refused to do her bidding. Stowers, who is appealing Holm's sentence, says the Hulk email "tends to support the view that there is a price to be paid" if prosecutors don't take her advice.

"Any defendant, including Mr. Holm, would be particularly alarmed by such judicial advocacy in seeking to enhance his sentence," Stowers wrote in court filings.

"Most defendants have a hard enough time defending against the prosecuting attorney. … They at least should expect the judge will not be assuming the role of prosecutor-in-chief," wrote.

Rose, who at 40 is the nation's youngest federal judge, declined to comment on the matter, as did Stowers and Klinefeldt. But in court papers, Rose has characterized Stowers' allegations about her conduct as "inaccurate, at best, and deliberately misleading, at worst."

She has also described her emails to prosecutors as "entirely appropriate, generic contact."

The Code of Conduct for federal judges states that generally a judge should not initiate, permit, or consider "ex parte communications" — that is, communications directed to only one party in a case — except for scheduling, administrative, or emergency purposes, and only if the communication doesn't address substantive matters.

And, according to the U.S. Judicial Conference Committee on the Code of Conduct, a judge shouldn't "provide guidance on the ins-and-outs of practice" before the judge's court or "provide direct assistance in a given case."

Rose has served as a U.S. District Court judge for the Southern District of Iowa for nine months. She served as U.S. Attorney for the Northern District of Iowa from November 2009 through August 2012.

In that role, she was occasionally accused of being too aggressive in the prosecution of some cases, including that of the former plant manager of Agriprocessors in Postville.

The emails from Rose to Klinefeldt, who has been Iowa's top Southern District prosecutor since 2009, came to light last week.

In January, Rose made the emails part of the court record in the Holm case, but sealed them from public view. In March, she agreed to a request by Holm's attorney to unseal the documents, but they remained inaccessible to the public until last week when they were requested by the Register.

'Baffled by refusals'

The emails — signed by "Steph" and addressed to "Nick" — show that in January, Rose wrote to Klinefeldt and said she was "growing increasingly frustrated" with "a few global issues" regarding the way his office conducted business. In her emails, Rose asked Klinefeldt for a meeting. Klinefeldt responded, "Absolutely."

Most of the issues cited by Rose deal with what she considered minor errors or inconsistencies in the way prosecutors worded various pleadings or briefs. But Rose also questioned the prosecutors' reluctance to provide information that could be used to lengthen prison sentences.

She wrote: "I'm troubled by your office's occasional refusal to provide relevant discovery information to the United States Probation Office. I'm baffled by similar refusals to provide relevant sentencing information to me."

Rose specifically cited the prosecutors' refusal to provide information on the use of a firearm in a recent drug-trafficking case involving Devon Braet — information that could have been used to increase Braet's sentence.

She also cited a case involving John Paul Bowers, who was charged with being a felon in possession of a firearm. In that case, prosecutors didn't offer any witnesses or evidence to support a longer sentence based on information that the gun in question was stolen.

At Bowers' sentencing, Rose expressed frustration with prosecutors, saying, "I need more information from the government on why it's not producing the witnesses that it's not producing. ... Frankly, my inclination, if I don't get any other information, is to vary upward to the maximum (sentence), and I don't know that that's fair to Mr. Bowers. ... I'm just completely baffled by the government's position, frankly."

At the hearing, Assistant U.S. Attorney Debra Scorpiniti asked Rose to specify her authority as a judge "to require the government to produce evidence or to require the government to explain its reasons" for not presenting evidence.

According to a transcript of that hearing, Rose didn't address the question directly, but said she had "to have relevant information to sentence somebody."

Rose clashed with prosecutors twice in the case of Bryan Holm, a former drug dealer who was charged last year with being a felon in possession of a firearm.

Just 15 days after her lifetime appointment as a federal judge was confirmed last fall, Rose presided over a hearing at which Holm pleaded guilty to the charge. Over the objections of both prosecutors and Holm's attorney, Rose ordered Holm detained until his sentencing hearing in January.

Then, in advance of Holm's sentencing, Rose indicated she was considering the option of lengthening Holm's sentence, in part because of information that he may have possessed drugs or recklessly discharged a weapon. She issued a written order directing prosecutors to present evidence along those lines at Holm's sentencing.

Assistant U.S. Attorney Clifford Wendel refused. At the sentencing hearing, he cited the plea agreement in which the government had agreed not to seek certain penalty "enhancements" against Holm.

"It is the discretion of the United States Attorney's Office, as part of the Executive Branch, to choose what testimony to present," Wendel told Rose.

Scorpiniti, another assistant U.S. attorney, then stood up and said the prosecutor's office wanted to make it part of the record that Rose had contacted Klinefeldt about the case to ask why his prosecutors were refusing to provide requested evidence.

According to court filings by Stowers, Rose then became "angry and flustered." She called a Boone police officer to the stand and questioned him, eliciting testimony about someone's use of a firearm inside an apartment where Holm had lived. She then sentenced Holm to eight years in prison — far in excess of the range contemplated by the plea agreement.

Before the hearing was over, the judge pointed out that prosecutors hadn't called any witnesses "despite the fact that I ordered them to." Rose also acknowledged sending the emails to Klinefeldt, but characterized them as "entirely appropriate and generic contact about problems I was having, one of which was the failure of the government to file a memo in the Holm case."

Email refers to 'Hulk'

Two hours after the sentencing hearing was wrapped up, Rose sent an email to Shannon Olson, who handled appeals for the U.S. Attorney's Office. Rose's three-sentence email carried the subject header, "Hulk."

In the email, Rose likened herself to the comic-book character Bruce Banner who turns into the Hulk when angered. She wrote: "You know how Bruce Banner says, 'You won't like me when I'm angry?' There's a lesson in there for all attorneys. Enjoy that transcript."

The last sentence was an apparent reference to the transcript of that day's sentencing hearing, which Olson would have to review as part of Holm's appeal.

In March, Rose denied, without comment, Stowers' request for a hearing to determine the full extent of any communications she'd had with prosecutors.

The Register asked Rose the intent behind the "Hulk" email and whether she had provided advice to defense attorneys on how to improve their court filings.

Rose declined to comment, saying that it was not proper for the court to address matters of pending litigation. She said she looked forward to addressing the issues in the future.

Stowers has appealed Holm's sentence, arguing that Rose improperly extended his client's prison sentence by calling a witness "out of apparent anger and frustration with the government's position and refusal to pursue the maximum possible arguable punishment."