Report and Recommendation — United States v. Donald Franklin Trosin, No. 20-CR-4066-LTS-KEM (Dkt. 56, N.D. Iowa)

Summary

Chief United States Magistrate Judge Kelly K.E. Mahoney recommends in this report, entered the 16th day of February, 2021 (No. 20-CR-4066-LTS-KEM, N.D. Iowa), that the court accept Donald Franklin Trosin's guilty pleas. That day Trosin waived indictment and, under a plea agreement, pleaded guilty to Counts 2 and 3 of the Superseding Information; Count 1 will be dismissed at sentencing. The judge advised that Count 2 carries a maximum term of imprisonment of 10 years and a maximum fine of $5,000,000.00, and Count 3 a maximum of 10 years and $250,000.00, plus a special assessment of $100.00 on each count. The report finds the pleas voluntary and supported by a factual basis, gives the parties 14 days to object, and says Trosin will remain released pending sentencing.

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Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, No. 20-CR-4066-LTS-KEM

vs. REPORT AND RECOMMENDATION

DONALD FRANKLIN TROSIN,

Defendant.
____________________

On February 16, 2021, the above-named Defendant appeared before the
undersigned United States Magistrate Judge by consent (Doc. 51), waived Indictment
(Doc. 54) and, pursuant to Federal Rule of Criminal Procedure 11, pleaded guilty to
Counts 2 and 3 of the Superseding Information (Doc. 53). Doc. 55. After cautioning
and examining Defendant under oath concerning each of the subjects mentioned in Rule
11, I determined that Defendant’s decision to plead guilty was knowing and voluntary
and that each offense pleaded to was supported by an independent basis in fact containing
each of the essential elements of the offense. I therefore RECOMMEND that the Court
ACCEPT Defendant’s guilty pleas and adjudge Defendant guilty.
At the commencement of the Rule 11 proceeding, I placed Defendant under oath
and explained that if Defendant answered any question falsely, the government could
prosecute Defendant for perjury or for making a false statement. I also advised Defendant
that in any such prosecution, the government could use against Defendant any statements
made under oath.
I then asked Defendant a number of questions to ensure Defendant had the requisite
mental capacity to enter a plea. I elicited Defendant’s full name, age, and extent of
education. I also inquired into Defendant’s history of mental health issues, use of drugs
and alcohol, and current use of medications. From this inquiry, I determined Defendant
was not suffering from any mental disability or other issue that would impair Defendant’s
ability to make a knowing, intelligent, and voluntary guilty plea.
Defendant acknowledged receipt of a copy of the Superseding Information and
further acknowledged that Defendant had fully discussed the Superseding Information
with Defendant’s counsel. Defendant acknowledged that Defendant had fully conferred
with counsel prior to deciding to plead guilty and that Defendant was satisfied with the
representation provided by Defendant’s counsel.
I fully advised Defendant of all the rights Defendant would be giving up if
Defendant decided to plead guilty, including:
1. The right to assistance of counsel at every stage of the case;

2. The right to a speedy, public trial;

3. The right to have the case tried by a jury selected from a cross-section of
the community;

4. That Defendant would be presumed innocent, and would be found not guilty
unless the government could prove each and every element of the offense
beyond a reasonable doubt;

5. Defendant would have the right to see and hear all the government’s
witnesses, and Defendant’s attorney would have the right to cross-examine
any witnesses called by the government;

6. That Defendant would have the right to subpoena witnesses to testify at the
trial and if Defendant could not afford to pay the costs of bringing these
witnesses to court, then the government would pay those costs;

7. That Defendant would have the privilege against self-incrimination; i.e.,
Defendant could choose to testify at trial, but need not do so; if Defendant
chose not to testify, then the Court would instruct the jury that it could not
consider or discuss Defendant’s decision not to testify;

8. That any verdict by the jury would have to be unanimous;

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9. That Defendant would have the right to appeal, and if Defendant could not
afford an attorney for the appeal, then the government would pay the costs
of an attorney to prepare the appeal.

I explained that if Defendant pleaded guilty, Defendant would be giving up all of
these rights, there would be no trial, and Defendant would be adjudged guilty just as if
Defendant had gone to trial and a jury returned a guilty verdict against Defendant.
Defendant acknowledged Defendant understood each of these rights and that Defendant
would be waiving these rights by pleading guilty.
I determined that Defendant was pleading guilty pursuant to a plea agreement with
the government. After confirming that a copy of the written plea agreement was in front
of Defendant and Defendant’s counsel, I determined that Defendant had reviewed the
plea agreement with counsel prior to the hearing. I summarized the plea agreement, and
made certain Defendant understood its terms.
I explained that because the plea agreement provided for dismissal of charges,1 if
Defendant pleaded guilty, a presentence report would be prepared, and a district judge
would consider whether to accept the plea agreement. If the district judge decided to
reject the plea agreement, then Defendant would have an opportunity to withdraw any
guilty plea and instead plead not guilty.
I summarized the charges against Defendant and listed the elements. I determined
that Defendant understood each and every element, and Defendant’s counsel confirmed
that Defendant understood these elements. I elicited a full and complete factual basis for
all elements of the crimes to which Defendant was pleading guilty. Defendant’s attorney
indicated that each offense to which Defendant was pleading guilty was factually
supported.
I explained to Defendant that the district judge would determine the appropriate
sentence at the sentencing hearing. I explained that the Court will use the advisory United

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Pursuant to the plea agreement, Defendant will plead guilty to Counts 2 and 3 of the Superseding
Information and Count 1 will be dismissed at the time of sentencing.
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States Sentencing Guidelines to determine Defendant’s sentence. I explained that the
sentence imposed might be different from what the advisory guidelines suggested it
should be, and may be different from what Defendant’s attorney had estimated. I
explained that a United States Probation Officer would prepare a written presentence
investigation report to assist the Court at sentencing and that Defendant and Defendant’s
counsel would have an opportunity to read the presentence report before the sentencing
hearing, and would have the opportunity to object to the contents of the report. I further
explained that Defendant and Defendant’s counsel would be afforded the opportunity to
present evidence and be heard at the sentencing hearing.
I advised Defendant of the consequences of each guilty plea, including the
maximum fine, the maximum term of imprisonment, the term of supervised release, and
the possibility that restitution may be ordered. Specifically, I advised Defendant Count
2 is punishable by:
maximum term of imprisonment 10 years;
maximum fine $5,000,000.00;
maximum term of supervised release up to 3 years.
I advised Defendant Count 3 is punishable by:
maximum term of imprisonment 10 years;
maximum fine $250,000.00;
maximum term of supervised release not more than 3 year.
I also advised Defendant that the alternative fine provisions of 18 U.S.C. § 3571
may apply at sentencing. Under those provisions, the maximum fine would be the
greatest of the following amounts: (1) twice the gross gain from the offense; (2) twice
the gross loss resulting from the offense; (3) $250,000; or (4) the amount specified in the
section defining the offense.
I further advised Defendant that the sentencing judge could order the sentences
run concurrently or consecutively.
I advised Defendant that there is no parole in the federal system. I also advised
Defendant that the Court will impose a mandatory special assessment of $100.00 on each
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count, for a total of $200.00, which Defendant must pay. I further advised Defendant of
the collateral consequences of pleading guilty.
Because this charge involves fraud or other intentionally deceptive practices,
Defendant was advised that the Court also could order Defendant to provide notice of the
conviction to victims of the offense.
Defendant acknowledged understanding the consequences and penalties associated
with a guilty plea.
I explained that the Court will impose conditions of supervised release, and that if
Defendant violates any condition of supervised release, then the Court could revoke
Defendant’s supervised release and require Defendant to serve all or part of the term of
supervised release in prison, without credit for time previously served on supervised
release.
I explained that pursuant to the plea agreement, Defendant waived any right to
appeal the sentence imposed by the judge, except for under the limited circumstances set
forth in the plea agreement. Defendant acknowledged understanding of this section of
the plea agreement.
Defendant confirmed that the decision to plead guilty was voluntary and was not
the result of any promises, other than plea agreement promises, and the decision to plead
guilty was not the result of anyone threatening, forcing, or pressuring Defendant to plead
guilty. I explained that after the district judge accepted Defendant’s guilty plea,
Defendant would have no right to later withdraw that plea, even if the sentence imposed
was different from what Defendant anticipated.
Defendant confirmed that Defendant still wished to plead guilty, and Defendant
pleaded guilty to Counts 2 and 3 of the Superseding Information.
I find the following with respect to each guilty plea:
1. Defendant’s plea is voluntary, knowing, not the result of force, threats or
promises, except plea agreement promises, and Defendant is fully
competent.

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2. Defendant is aware of the minimum and maximum punishment.

3. Defendant knows of and voluntarily waived Defendant’s jury trial rights.

4. There is a factual basis for the plea.

5. Defendant is guilty of each crime to which Defendant pleaded guilty.

I explained that the parties have 14 days from the filing of this Report and
Recommendation to file any objections to my findings, and that if no objections are made,
then the district judge may accept Defendant’s guilty plea by simply entering a written
order doing so.
United States v. Cortez-Hernandez, 673 Fed. App’x 587 (8th Cir. 2016) (per
curiam), suggests that a Defendant may have the right to de novo review of a magistrate
judge’s recommendation to accept a plea of guilty even if no objection is filed. But see
28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b). The district court judge will undertake
a de novo review of the Report and Recommendation if a written request for such review
is filed within 14 days after this report and recommendation is filed.
Defendant will remain released pending sentencing.
DONE AND ENTERED this 16th day of February, 2021.

Kelly K.E. Mahoney
Chief United States Magistrate Judge
Northern District of Iowa

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