JOHN T. FOWLKES, JR., District Judge.
Before the Court is Defendant Samuel Rosse's Second Motion to Dismiss filed on April 11, 2014. (Def.'s Motion, ECF No. 46). On April 28, 2014, the Court referred the motion to the United States Magistrate Judge for Report and Recommendation pursuant to 28 U.S.C. § 636(b). (Order
For the following reasons, the Court finds the Magistrate's report and recommendation should be adopted and Defendant's Second Motion to Dismiss DENIED.
The Court adopts the Magistrate Judge's proposed findings of fact as the factual history of this case as well as other factual summaries included in prior Orders issued by this Court.
A United States District Court Judge may refer certain dispositive motions, including motions to dismiss indictments, to a United States Magistrate Judge for submission of proposed findings of fact and conclusions of law for disposition by the District Judge pursuant to 28 U.S.C. § 636(b); U.S. v. Houston, Case No. 3:13-10-DCRF, 2013 WL 3975405 *1 (E.D.Tenn. July 29, 2013). The District Judge may accept, reject or modify in whole or in part, the Magistrate's proposed findings and recommendations. U.S. v. Raddatz, 447 U.S. 667, 673-675, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980), reh'g den., 448 U.S. 916, 101 S.Ct. 36, 65 L.Ed.2d 1179 (1980). See 28 U.S.C. § 636(b)(1)(B).
In criminal cases, the District Judge is required to make a de novo determination of those portions of a Magistrate's report and recommendation to which specific objections are made regarding the dispositive matters contained the
In her report and recommendation, the Magistrate examined whether Defendant's Second Motion to Dismiss should be granted because of prosecutorial vindictiveness. (Report and Recommendation, ECF No. 78). Defendant asserts the Superseding Indictment should be dismissed because it demonstrates a realistic likelihood of vindictiveness on behalf of the prosecutor(s). Specifically, Defendant contends the Government filed the Superseding Indictment: 1) over one year after his initial arrest; 2) to punish or penalize him for successfully exercising his constitutional rights; and 3) to expose him to harsher penalties by "upping the ante" and adding the conspiracy charge and forfeiture provisions. Defendant asserts that the prosecutor(s)' actions in this case were unreasonable and atypical because the evidence presented to the grand jury that returned the Superseding Indictment could have been presented earlier. He further asserts that forfeiture provisions were rarely added to Superseding Indictments in other similar drug cases previously assigned to the three prosecutors involved in this case. Finally, the Defendant asserts that he has been prejudiced and subjected to further delays, again in violation of the Speedy Trial Act.
The Magistrate's proposed conclusions of law recommend that Defendant's Second Motion to Dismiss should be denied. In her report and recommendation, the Magistrate concluded that Defendant failed to demonstrate a realistic likelihood of vindictiveness that would justify dismissal of the Superseding Indictment. She indicated that the Defendant failed to satisfy the four requisite elements: 1) an exercise of a protected right; 2) a prosecutorial stake in the exercise of that right; 3) unreasonable prosecutorial conduct; and 4) an intent to punish the defendant because of exercising the protected right. See generally, U.S. v. Suarez, 263 F.3d 468, 479 (6th Cir.2001). (Report and Recommendation, ECF No. 78, pp. 882-83). Specifically, the Magistrate's proposed conclusions of law are as follows:
The Magistrate concluded that Defendant exercised his constitutional right to move for dismissal of the indictment under the Speedy Trial Act in Case No. 12-cr-20029-JTF. Furthermore, Defendant was successful in obtaining bond in the case at hand as well as in 12-cr-20029-JTF, even though bond was ultimately revoked by this Court. (Id. at 883-84). Nevertheless, the Magistrate found that a presumption of prosecutorial vindictiveness does not exist in this regard. A defendant is expected to exercise his procedural due process right to file motions for bond or motions to dismiss for Speedy Trial violations when
The Magistrate's report and recommendation indicated that from the perspective of the government, there is little at stake in the early pre-trial stage of a criminal proceeding. The Magistrate indicated that because the Government's burden is less at the pre-trial stage, in comparison to the post-trial/post-conviction stage, the Government has less of a stake in the outcome of a pretrial motion, making the possibility of vindictiveness far less likely. United States v. Andrews, 633 F.2d 449, 454 (6th Cir.1980) (en banc). Thus, in the case at hand, the Defendant's bond requests and motions to dismiss do not appear to have triggered a vindictive response from the Government. (Report and Recommendation, ECF No. 78, pp. 884-85).
The Magistrate determined that AUSA Kitchen's statements regarding the filing of additional counts that would subject Defendant to thirty years imprisonment were not unreasonable or indicative of prosecutorial vindictiveness. (Report and Recommendation, ECF No. 78, pp. 884-88). The Magistrate indicated that the decision whether or not to prosecute and what specific charges to bring before the grand jury is always within the prosecutor's discretion. Similarly, the Magistrate's report and recommendation proposed that the Court reject Defendant's argument that the prosecutors acted unreasonably, and displayed a clear intent to punish by subjecting him to harsher penalties and a forfeiture of his asserts. (ECF No. 78, pp. 888-90). The Magistrate noted that the Government's filing of a Superseding Indictment that contains an additional charge when based on newly-obtained evidence is insufficient to prove a vindictive prosecution claim. See Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).
Additionally, the Magistrate recommended that Defendant's Speedy Trial Act claims pertaining to the prior case, particularly the alleged showing of prejudice had been resolved by dismissal, and were inconsequential to the current proceeding. The report and recommendation noted that a new Speedy Trial Clock starts each time the Government re-indicts a Defendant. Furthermore, the Magistrate concluded that the Defendant is precluded from seeking review of these Speedy Trial claims until a final disposition of the current matter, at which time he may then seek appellate review before the Sixth Circuit Court of Appeals.
Regarding Defendant's claims of prosecutorial vindictiveness based on the delays that occurred while Defendant was in transit and awaiting the mental competency evaluations, the Magistrate recommended that those claims be found meritless. See 18 U.S.C. §§ 4247 and U.S. v. Tinklenberg, 579 F.3d 589, 595 (6th Cir.2009). (Report and Recommendation, ECF No. 78, pp. 891-94).
The Magistrate noted that the test for prosecutorial vindictiveness is whether there is a realistic likelihood of vindictiveness based on the particular factual situation
Defendant makes the following objections to the Magistrate's report and recommendation: 1) actual vindictiveness; and 2) a realistic likelihood of vindictiveness on behalf of the Government. (Objections, ECF No. 95, pp. 5-10). The Court will address both objections in turn.
It is difficult to understand Defendant's actual vindictiveness claim, especially when he appeared to have abandoned this claim during the hearing before the Magistrate. Because of this, the Magistrate did not include an actual vindictiveness analysis in her report and recommendation. The Court finds the Magistrate correctly concluded that the actual vindictiveness arguments raised in Defendant's Bench Brief had been abandoned during the evidentiary hearing on May 28, 2014. The Magistrate indicated in her report and recommendation that:
(See Report and Recommendation, ECF No. 78, n. 13). The Court agrees. The transcript of the evidentiary hearing clearly denotes that in response to inquiry from the Magistrate, Defendant asserted he was not pursuing an actual vindictiveness claim but instead, was attempting to introduce evidence of the prosecutors' actions in other cases to meet the unreasonable and intent-to-punish prongs of a reasonable likeliness of vindictiveness claim. (ECF No. 76, pp. 398-399).
The Court is not required to address the merits of an actual vindictiveness claim since that claim was abandoned before the Magistrate Judge. The Sixth Circuit has addressed the issue regarding whether a party may raise new arguments before a district judge that were not presented to the magistrate judge. Glidden Co. v. Kinsella, 386 Fed.Appx. 535, 544 n. 2 (6th Cir.2010). In Glidden, the Sixth Circuit joined the First, Fifth, Eighth and Tenth Circuits in holding that a party waives an argument if it does not raise it before a magistrate judge. Id. Similarly, in a prior ruling, the Sixth Circuit noted that a party's failure to raise an argument before the magistrate judge constitutes waiver. Murr v. United States, 200 F.3d 895, 902 n. 1 (6th Cir.2000)(in § 2255 habeas proceeding, absent compelling reasons, parties are not allowed to raise at the district court stage new arguments or issues not presented to the magistrate).
As noted, the Defendant now asserts that he has demonstrated actual vindictiveness of the Government under United States v. Dupree, 323 F.3d 480, 489 (6th Cir.2003); U.S. v. Andrews, 633 F.2d 449, 456 (6th Cir.1980) and Hayes v. Cowan, 547 F.2d 42 (6th Cir.1976), judgment reversed by Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Defendant contends that the Government continually accused Defense Counsel of lying and perjury. Defendant also argues the Government withheld evidence from a federal judge while openly stating its intention to add charges against Defendant that would result in his imprisonment for thirty years. Defendant contends that because the Prosecutor openly stated before the District Court that it was considering adding additional charges and increasing the possibility of incarceration to thirty years, he has proven actual prosecutorial vindictiveness. The basis for this argument is the colloquy before the undersigned court during the bond appeal hearing on February 5, 2014.
In order to adequately establish an actual vindictiveness claim, a defendant must produce "objective evidence that a prosecutor acted in order to punish the defendant for standing on his legal rights." Thus, the burden placed on a defendant is "onerous" and is "exceedingly difficult" to carry. Dupree at 489. In the case at hand, Defendant has failed to carry his burden.
The Court finds the Magistrate Judge thoroughly reviewed "all of the pleadings and transcripts" of both cases and conducted an in camera review of the grand jury proceedings with the parties' consent. (Report and Recommendation, ECF No. 78, p. 882). Therefore, the Court finds Defendant's arguments regarding the Magistrate's failure to review and analyze critical underlying facts are substantially without merit. Also, the Court finds the Magistrate correctly concluded there was new evidence presented to the Grand Jury which supports the additional charge in the Superseding Indictment. (ECF No. 78, pp. 886-88).
Upon a de novo review of the Magistrate's report, the Court again finds she evaluated all of the relevant facts, reviewed and extensively quoted colloquies
Defendant specifically asserts that the Government accused Defense Counsel, Daniel Hancock, of making false representations in his affidavit which accompanied his objections to the Magistrate's Report and Recommendation entered on October 21, 2013.
The Court finds this issue has no bearing on the Magistrate's report and recommendation and was not raised previously in Defendant's Second Motion to Dismiss. (ECF No. 46). The Defendant has referenced a conversation between Mr. Hancock and AUSA Chris Scruggs regarding the Speedy Trial Act. The Defendant asserts that AUSA Scruggs was not forthcoming with the Court by standing silent during the hearing on September 18, 2013, regarding the Speedy Trial implications. (Id. at ¶ 6). Again, the Court finds this incident has no bearing on the pending case and whether there was actual prosecutorial vindictiveness.
During the bond review proceedings before this Court on February 5, 2014, and referenced by Defendant, the issue regarding whether Defendant would be treated fairly by the Government arose. (ECF No. 95, p. 3, ¶ 5e). The transcript contains the following discussion:
(ECF No. 50, pp. 149-150). The Court has already noted that disagreements among counsel have nothing to do with the proceedings at issue before the Court. Further, the Sixth Circuit has noted that the "vindictive prosecution" doctrine was designed to prevent retaliation against the defendant for the assertion of his protected rights, "not to police the emotions of prosecutors." U.S. v. Suarez, 263 F.3d at 482. Similar to Suarez, Defendant in this case argues that the prosecutor was out to
The Defendant next objection is that the prosecutor's threat of filing additional charges is objective evidence of actual prosecutorial vindictiveness. (ECF No. 95, p. 7). The Government responds that under U.S. v. Suarez, the fact that a Superseding Indictment was brought against the Defendant is not evidence of actual prosecutorial vindictiveness. (ECF No. 101, p. 8). The Government asserts that according to U.S. v. Andrews, 633 F.2d at 454, as long as the prosecutor had probable cause to believe the accused committed the offense defined by the statute, the decision whether to prosecute the defendant for that offense rests entirely within the prosecutor's discretion. See also Bordenkircher, 434 U.S. at 364, 98 S.Ct. 663. Further, in disputing whether the Government acted with actual vindictiveness by increasing the number of years offered to settle the case during the latest plea negotiations, the Government contends that as long as the defendant is capable of rejecting the prosecutor's offer, there is no element of excessive punishment or retaliation. Id. at 363, 98 S.Ct. 663; Gov't Reply, ECF No. 101, p. 9).
In Bordenkircher, there was no prosecutorial vindictiveness even when the prosecutor threatened to "up the ante" by bringing a new indictment. Id. at 363, 98 S.Ct. 663. The Supreme Court, for the first time, considered an allegation of vindictiveness that arose in a pretrial setting. The Court held that the Due Process Clause of the Fourteenth Amendment did not prohibit a prosecutor from carrying out a threat made during plea negotiations to bring additional charges against an accused that refused to plead guilty to the offense with which he was originally charged. The prosecutor in that case had explicitly told the defendant that if he did not plead guilty and "save the court the inconvenience and necessity of a trial" he would return to the grand jury to obtain an additional charge that would significantly increase the defendant's exposure. The defendant refused to plead guilty and the prosecutor obtained the new indictment. It was undisputed that the additional charge was justified by evidence that was in possession of the prosecutor at the time the original indictment was obtained. It was also not disputed that the prosecutor sought the additional charge because of the accused's refusal to plead guilty to the original charge. Under those facts, the Court found that the prosecutor did not abuse his discretion. Id. at 363-364, 98 S.Ct. 663. In this case, the Court agrees with the Magistrate that the Defendant has failed to show actual vindictiveness or even a realistic likelihood of prosecutorial vindictiveness by AUSA's filing new charges.
In addition to the Court's review of each of Defendant's assertions outlined above, the Court has considered Defendant's claims in their totality. Clearly, each of the Defendant's individual claims fall short of what is required to show prosecutorial vindictiveness. However, does the cumulative effect of all alleged instances of abuse amount to prosecutorial vindictiveness? It is this Court's view that, even when all of Defendant's alleged transgressions
The Defendant also contends that the Government's handling of this case demonstrate a "reasonable likelihood of prosecutorial vindictiveness." Bragan v. Poindexter, 249 F.3d 476, 481 (6th Cir. 2001); Goodwin, 457 U.S. at 373, 102 S.Ct. 2485. Similar to "actual prosecutorial vindictiveness," in order for a defendant to establish a "realistic likelihood of vindictiveness" based on the prosecutor's action, the defendant must establish: 1) he exercised a protected right, 2) the prosecutor has some `stake' in deterring the petitioner's exercise of his right; 3) the prosecutor's conduct was somehow "unreasonable;" and 4) there was an intent to punish. Bragan, 249 F.3d at 482-483. If the first three elements are established, then a presumption arises that there is a realistic likelihood of prosecutorial misconduct. Suarez, 263 F.3d at 479. Once a court has found a realistic likelihood of vindictiveness exists, the Government then bears the burden of disproving it or justifying the challenged state action. Andrews, 633 F.2d at 456. "[O]nly objective, on-the-record explanations can suffice to rebut a finding of realistic likelihood of vindictiveness." Id.
Defendant objects to the Magistrate's recommendation that he failed to demonstrate a reasonable likelihood of prosecutorial vindictiveness. The Defendant specifically asserts: 1) the Magistrate Judge failed to adequately address whether there was a prosecutorial stake in the pre-trial motions; 2) the Magistrate Judge ignored that AUSA Kitchen displayed unreasonable conduct and should have been aware of all of the evidence dated back to May 2012, and 3) the Magistrate Judge failed to address whether AUSA Kitchen attempted to subject the Defendant to harsher penalties.
The Government replies that all of the issues cited in Defendant's objections were thoroughly reviewed and properly addressed by the Magistrate Judge. (ECF No. 101, pp. 9-13). The Government also responds that due process is usually not offended when a prosecutor acquires a superseding indictment that results in the possibility of increased punishment. The Government contends that this principle defeats Defendant's argument that AUSA Kitchen's intention was to punish when he sought the superseding indictment. Blackledge, 417 U.S. at 27, 94 S.Ct. 2098, (ECF No. 101, p. 13). In response to Defendant's objections regarding the Magistrate's Speedy Trial finding, the Government merely asserts that Defendant has failed to offer a basis for his objections. (ECF No. 101, p. 14).
The Magistrate concluded that Defendant exercised a protected right by filing the motions for bond and the motions to dismiss the indictments. There is no objection to this recommended finding.
The Defendant has objected to the Magistrate's determination that the prosecutors
The Magistrate concluded the Government had no prosecutorial stake in the proceeding when the Defendant exercised his rights in the pretrial setting. The Magistrate concluded that "[i]n this case, because the District Court ultimately held that Defendant would be detained pending trial, there is even less motive for the prosecution to exercise vengeance on Defendant than in Andrews." (Report and Recommendation, ECF No. 78, p. 884).
Courts are indeed required to examine the facts of each case and decide whether the prosecutor had a stake in an outcome, and thereby a reason to deter the exercise of some constitutional right. Andrews, 633 F.2d at 454. However, Andrews rejected the notion that in every pretrial setting, the prosecutorial stake is so de minimus there can never be a realistic likelihood of vindictiveness. Id. The Supreme Court cautioned against adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. United States v. Goodwin, 457 U.S. 368, 381, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). Further, the determination of a prosecutorial stake is but one factor in proving vindictiveness. Suarez, 263 F.3d at 479-480. "[W]hile the timing [of the superseding indictment] certainly does not compel the conclusion that a change in the indictment was a product of vindictiveness, it does make the possibility more likely than would a change at a pretrial stage." U.S. v. Poole, 407 F.3d 767, 776 (6th Cir.2005).
The conclusive issue is whether the prosecution is negatively impacted by having to retry a decided question or do over what it thought it had already done correctly. U.S. v. Roach, 502 F.3d 425, 444 (6th Cir.2007) quoting Goodwin, 457 U.S. at 383, 102 S.Ct. 2485. Additionally, a prosecutorial stake exists where a defendant's post-conviction or post-trial appeal requires the expenditure of additional resources and could ultimately result in the defendant going free. The Court in Blackledge noted that a prosecutor may have a considerable stake in deterring appeals from convictions since the prosecutor would have to try the case all over again requiring increased expenditures and prosecutorial resources. Blackledge, 417 U.S. at 27-28, 94 S.Ct. 2098. See also U.S. v. McCreary-Redd, 407 Fed.Appx. 861, 869 (6th Cir.2010). On the other hand, a prosecutor who loses a bail motion does not retry the case and has not incurred considerable expenditures. Therefore, the Court finds the Magistrate analyzed the facts of this case and correctly found that, at this stage, no perceived prosecutorial stake existed.
Defendant objects to the Magistrate's report and recommendation on the basis that she failed to examine whether the prosecutor's conduct was unreasonable. The Defendant suggests that the Magistrate failed to address that AUSA Kitchen's conduct was unreasonable in the following instances: 1) by failing to address Defense Counsel's alleged false affidavit; 2) withholding certain information from the Court regarding alleged threats against a coconspirator(s); 3) the prosecutor's threat to amend the indictment to add more charges to enhance Defendant's punishment to thirty years, and last, 4) the AUSA's assertion that he was unaware of
The Magistrate Judge determined that the prosecutor's decision to seek the superseding indictment, even if evidence of more severe charges was available and known to the Government at the time the original indictment was sought, was not unreasonable. (ECF. No. 78, p. 888). The Magistrate determined that not only does a prosecutor have the right to negotiate a guilty plea but also has the discretion to seek additional charges. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Allegations that AUSA Kitchen's conduct was unreasonable in this case is speculative and without support in the record.
Defendant objects that the Magistrate Judge failed to address whether AUSA Kitchen's alleged attempts to subject him to harsher penalties satisfied the intent-to-punish prong of a realistic likelihood of vindictiveness claim. The Magistrate Judge concluded that under the applicable guideline range, should Defendant be found guilty of both charges in the superseding indictment, it was probable that the penalties would be merged at sentencing, rendering Defendant's enhanced punishment argument void and without merit. U.S. Sentencing Guidelines Manual § 2D1.1 and § 3D1.2 (2011). (Report and Recommendation, ECF No. 78, pp. 888-90). Furthermore, the Sixth Circuit has clearly ruled that filing a superseding indictment that contains an additional count is insufficient to demonstrate a realistic likelihood of prosecutorial vindictiveness or an intent to punish. U.S. v. Ewing, 94-3010, 1994 WL 577055 at *3 (6th Cir.1994). Therefore, the Magistrate Judge correctly indicated that the mere acquisition of a superseding indictment with additional charges based on previously unavailable evidence is unsupportive of a claim of prosecutorial vindictiveness. Suarez, 263 F.3d at 480. (Report and Recommendation, ECF No. 78, p. 890). The Court overrules Defendant's objections that Mr. Kitchen's actions in bringing a Superseding Indictment were indicative of his intent to punish and subject Defendant to harsher penalties.
Also, Defendant's newly-asserted claim that an intent to punish is evident by the Government's email showing the desire to seek twenty five (25) years of incarceration is also without merit. The Supreme Court has upheld there is no such element of punishment or retaliation during the give-and-take of plea bargaining, as long as, the defendant is able to reject or accept the Government's offer. Bordenkircher, 434 U.S. at 363, 98 S.Ct. 663. In the alternative, a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial but may file additional charges if the initial expectation that the defendant would plead guilty to lesser charges proves futile. Goodwin, 457 U.S. at 379, 102 S.Ct. 2485.
By reviewing the bond and motion hearing transcripts in both cases, the Magistrate has examined the prosecutor(s)' behavior. Therefore, Defendant's objections in this regard are purely conclusory and unsupported by the record. Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir.1991) and U.S. v. Walters, 638 F.2d 947, 951 (6th Cir. 1981). The Court concludes the Magistrate Judge examined all four prongs needed to establish a realistic likelihood of vindictiveness claim, concluding they did not exist in this case. Bragan, 249 F.3d at 482-483.
After a de novo review of the Magistrate's report and recommendation, including Defendant's objections and the Government's reply, the Court adopts the Magistrate's recommendation and finds that Defendant's Second Motion to Dismiss should be
CHARMIANE G. CLAXTON, United States Magistrate Judge.
Before the Court is Defendant Samuel Rosse's Motion to Dismiss filed on April 11, 2014. (Def.'s Motion, D.E. # 46). The Government filed a Response to Defendant's Motion to Dismiss on April 21, 2014 to which Defendant filed a Reply on April 30, 2014. (Resp., D.E. # 52; Def.'s Reply, D.E. # 58). On April 28, 2014, the motion was referred to the United States Magistrate Judge for Report and Recommendation pursuant to 28 U.S.C. § 636(b). (Order, D.E. # 68). An evidentiary hearing was held on March 28, 2014, and the parties were granted leave to file supplemental pleadings. On May 30, 2014, Defendant filed a Bench Brief and the Government filed its response on June 6, 2014. (Def.'s Bench Brief, D.E. # 71; Govt's Resp., D.E. # 73).
For the following reasons, it is recommended that Defendant's Motion to Dismiss be
Defendant's history with this Court dates back to September 19, 2012, when he was indicted by a federal grand jury and charged with one count of possession with the intent to distribute more than fifty (50) grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1).
On September 20, 2012, Defendant was arrested, advised of the charges and released on a $15,000 appearance bond. (Minute Entry, D.E. # 5-7, Bond, D.E. # 9). The matter was continued on numerous occasions, beginning on October 3, 2012 to allow Defendant time to retain counsel. At the next setting on October 17, 2012, Defendant appeared with counsel, entered a not-guilty plea and was released under his current bond conditions. (Minute Entries, D.E. # 10 and D.E. # 11).
On February 1, 2013, the Defendant, present with counsel, requested a continuance for more time to prepare. Defense counsel indicated that discovery had been completed and he did not anticipate any suppression issues. (Report Date Tr., D.E. # 70). The report date was continued to March 27, 2013. At defense counsel's request, the March 27 report date
At the July 19, 2013 report date, Defendant was in Houston, Texas seeking medical treatment and a trial date was set for August 19, 2013.
On September 9, 2013, the Defendant appeared with newly retained counsel and the Government filed a motion to remand Defendant into custody for a mental evaluation.
In the interim, on September 17, 2013, Defendant filed a motion to dismiss the indictment based on the Speedy Trial Act. (Def.'s Motion, D.E. # 51 and Brief, D.E. # 52). The District Court referred the motion to dismiss to the undersigned Magistrate Judge for report and recommendation. (Order of Referral, D.E. # 57). On October 7, 2013, a report and recommendation was issued by the undersigned that recommended granting the Defendant's motion to dismiss the indictment without prejudice.
On January 21, 2014, the Defendant was present in court for the Motion to Dismiss Hearing. (Minute Entry, D.E. # 84). The District Court ruled ore tenus that the case would be dismissed due to the Speedy Trial Violation and adopted the report and recommendation to dismiss the case without prejudice on the following day. (Order, D.E. # 86). Subsequently, the Government filed an affidavit and criminal complaint on January 21, 2014, charging Defendant with a violation of 21 U.S.C. § 841. The criminal complaint charged that on or about May 3, 2012 in Shelby County, Tennessee:
The affidavit in support of the complaint actually provides that the net weight determined was 676.0 grams of methamphetamine. (Compl., D.E. # 1). A probable cause/detention hearing was set for January 23, 2014 but continued upon motion of the Defendant until January 30, 2014. (Motion, D.E. # 7; Order, D.E. # 8; Minutes D.E. # 12). Also on January 30, 2014, the grand jury returned an indictment against Defendant on January 30, 2014, charging him with one-count of possession with the intent to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C. § 846. (Indictment, D.E. # 9).
Upon appeal by the Government, a bond review hearing was held before the District Court on February 5, 2014. During the hearing, Defendant requested additional time to prepare, Defendant remanded, and the hearing continued to February 18, 2014. (Minute Entries, D.E. # 19 and D.E. # 20). On February 18, 2014, the District Court determined that Defendant is a flight risk and threat to himself and other potential witnesses. Accordingly, the District Court reversed the Magistrate Judge's Order granting bond and ordered Defendant detained pending trial. (Order of Detention, D.E. # 25).
On March 19, 2014, the United States filed a First Superseding Indictment, charging Defendant with two counts-possession with the intent to distribute more than fifty (50) grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and conspiracy to distribute approximately 670.5 grams of methamphetamine, in violation of 21 U.S.C. § 846. (Superseding Indictment, D.E. # 27). The United States further amended the original indictment to add a criminal forfeiture provision allowing a money judgment of $500,000.00 or in the alternative, to substitute prospective assets in that amount that belong to Defendant. (D.E. # 27).
Specifically, the Superseding Indictment charges:
The First Superseding indictment adds provisions for criminal forfeiture pursuant to Title 21 U.S.C. § 853(a)(1) and (2) that read:
As a result, Defendant has filed the instant Motion to Dismiss the First Superseding Indictment on the basis of vindictive prosecution which has been referred for report and recommendation. (Def.'s Motion to Dismiss, D.E. # 46; Order, D.E. # 55). An evidentiary hearing was conducted on May 28, 2014 where the Court took under advisement arguments of counsel pending further supplemental briefing. (Minute Entry, D.E. # 70).
District Court Judges have the discretion to refer certain dispositive motions to a Magistrate Judge to conduct hearings, including evidentiary hearings, for submission of proposed findings of fact and proposed recommendations for disposition of any motion by the District Judge, including a motion to dismiss the indictment pursuant to 28 U.S.C. § 636(b); U.S. v. Houston, Case No. 3:13-10-DCR, 2013 WL 3975405 *1 (E.D.Tenn. July 29, 2013) and U.S. v. Bozeman, No. 3:11-cr-129, 2012 WL 1071207 *1 (E.D.Tenn. March 29, 2012).
Defendant focuses primarily on prosecutorial vindictiveness in violation of his due process rights as the basis for the motion to dismiss the first superseding indictment. (Def.'s Motion, ECF. 46, ¶ 26). Specifically, Defendant argues the superseding indictment was filed by the Government: 1) after an unreasonable and prejudicial delay in excess of one year; 2) to penalize or punish him for exercising his constitutional rights; and finally, 3) to "up the ante" and expose Defendant to harsher penalties. In support of the motion to dismiss, Defendant requested that the Court rely on the transcripts of all prior proceedings, conduct an in camera review of the grand jury proceedings, as well as, allow supplemental briefing regarding other similar drug cases prosecuted within the last five years by all three, former and currently assigned, Assistant United States Attorneys involved in this case. The Court granted Defendant's Motion to Disclose and agreed to an in camera review
In response, the Government counters that: 1) the Assistant U.S. Attorney assigned the case did not have a prosecutorial stake in either of Defendant's pretrial motions, the motion for bail or the Speedy Trial dismissal based on the commonality and frequency of these anticipated procedural motions; 2) the return of the superseding indictment was not unreasonable conduct considering the discovery of new evidence; had the prosecutor not filed the superseding indictment, he would have been derelict in his official prosecutorial duties; and 3) Defendant has not been prejudiced by the additional charges because the penalties are the same under both the original charging document in the closed case and under the superseding indictment in the instant case.
Upon a review of all of the pleadings and transcripts in both criminal cases, including the report dates, bond hearings, bond appeal hearing, the grand jury proceedings and the evidentiary hearing relative to this motion, the Court recommends that Defendant's Second Motion to Dismiss should be denied for the following reasons.
In order to establish a claim for vindictive prosecution, the Sixth Circuit has held that "[d]ue process prohibits an individual from being punished for exercising a protected statutory or constitutional right." United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). "To punish a person because he has done what the law plainly allows him to do is a due process violation `of the most basic sort.'" Id. at 372, 102 S.Ct. 2485. The purpose of the vindictive prosecution doctrine is to prevent prosecutors from retaliating against defendants by charging them with more severe charges as a result of their having asserted a protected right. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) ("[D]ue process violation[s] in [vindictive prosecution] cases lay not in the possibility that a defendant might be deterred from the exercise of a legal right ... but rather in the danger that the state might be retaliating against the accused for lawfully attacking his conviction."). United States v. Andrews, 633 F.2d 449, 455 (6th Cir.1980) (en banc). Although due process is not implicated by all possibilities of increased punishment, it does protect against prosecutorial
On the other hand, a defendant may demonstrate "a realistic likelihood of vindictiveness" by showing:
United States v. Suarez, 263 F.3d 468, 479 (6th Cir.2001). If the first three elements are present, then a presumption arises that there is a realistic likelihood of prosecutorial vindictiveness to which the Government must then rebut. Id.
First, Defendant argues that because he successfully exercised his constitutional right to move for a dismissal of the prior indictment in Case No. 12-20029 under the Speedy Trial Act, and successfully received bond before the Magistrate Judge in this case, the Government "upped the ante," raising a reasonable likelihood of vindictiveness. (Def.'s Motion, D.E. # 46, ¶ 30).
The Court finds Defendant did exercise a protected right when he filed the motion to dismiss the former case based on the Speedy Trial violation and when he pursued a bond in the 2014 case. The right to file a pretrial motion to dismiss is a procedural right. Suarez, 263 F.3d at 479; U.S. v. McQuiddy, 2013 WL 317965 *5 (M.D.Tenn. Jan. 28, 2013). However, there is no presumption of prosecutorial vindictiveness in a pretrial setting. Goodwin, 457 U.S. at 372, 102 S.Ct. 2485. A defendant is expected to exercise his procedural rights in a pretrial setting. Therefore, it is unrealistic to assume that a prosecutor's response to such motions would be to penalize and deter. Id. at 381,
(Def.'s Reply, D.E. # 58, ¶ 11). Ultimately, the District Court agreed when it dismissed the 2012 case without prejudice.
Defendant asserts that the prosecution has a stake in Defendant's exercise of his right to seek dismissal of the 2012 case and in seeking bond in the 2014 case. Defendant's success in initially acquiring a bond in this case does not serve as a trigger to prosecutorial vindictiveness. The Sixth Circuit has held that there is no prosecutorial stake in deterring the exercise of a constitutional right, particularly in a pretrial motion. The Court has noted the prosecutorial interest in deterring a bail motion is not as great as a prosecutor's interest in deterring an appeal from a trial de novo. Ultimately, the Court explained that a prosecutor's stake in a pretrial setting is "always so de minimus that there can never be a "realistic likelihood of vindictiveness" in a pre-trial setting." Andrews, 633 F.2d at 454.
Defendant cites Andrews in support of his argument that winning the bond motion caused the Government to add the conspiracy count and the forfeiture provisions in the superseding indictment. However, on appeal, the en banc Sixth Circuit panel reversed the district court's ruling in Andrews that the conspiracy charge added after the defendants successfully forged a bail appeal demonstrated prosecutorial vindictiveness. Id. at 457. A careful reading of Andrews indicates that the Sixth Circuit found the application of per se appearance of vindictiveness too harsh and one that unduly limits prosecutorial discretion. Id. at 456. The Court actually concluded that the proper standard of prosecutorial vindictiveness is not an appearance of vindictiveness but rather a realistic likelihood of vindictiveness. Id. at 444.
In this case, because the District Court ultimately held that Defendant would be detained pending trial, there is even less motive for the prosecution to exercise vengeance on Defendant than in Andrews. Likewise, Defendant's success in pursuit of dismissal of the 2012 case does not provide sufficient burden on the prosecution to demonstrate prosecutorial vindictiveness. There is less of a burden on the government at the pre-trial stage of a proceeding and therefore, the Government has less of a stake in the outcome as compared to a post-trial, post-conviction proceeding. United States v. Moon, 513 F.3d 527, 536 (6th Cir.2008).
Subsequent to dismissal without prejudice under the Speedy Trial Act of the original indictment charging Defendant with possession with the intent to distribute 50 grams of methamphetamine, the Government immediately filed a complaint that led to the grand jury returning a one-count
Defendant argues that "[f]rom the viewpoint of a reasonable person, these added counts with harsher penalties indicate that they were added vindictively, not only, to enhance the prosecutor's ability to gain a conviction but to obtain a longer sentence and take all real property that is owned by Rosse." (Def.'s Motion, D.E. # 46, ¶¶ 32 and 33). In his reply, Defendant asserts that because AUSA Jerry Kitchen indicated he was aware of relevant information regarding threats to harm and to kill a government witness at the bond appeal hearing before Judge Fowlkes on February 5, 2014, he did not receive any new information right before the bond hearing before Magistrate Judge Vescovo as asserted. Defendant contends that during this hearing Kitchen indicated that he would be filing additional counts, including a firearm and obstruction charge that would result in Defendant getting thirty years. (Def.'s Reply, ECF. No. 58, p. 12). In other words, Defendant contends the Government's choice to seek a superseding indictment to add an additional count with harsher penalties is unreasonable and therefore vindictive. The Court recommends that this claim be rejected.
The colloquy during the bond appeal hearing on February 5, 2014 before Judge Fowlkes included:
Defendant argues that AUSA Kitchen's conduct was unreasonable because he admitted before the District Judge that he had new information regarding the threats to confidential informants but failed to disclose them to Judge Vescovo during the prior bond hearing. Defendant further asserts that this information may have been new to Mr. Kitchen but was information previously available to the Government because it concerns the same incident leading to his arrest on May 3, 2012. Defendant also argues that the same information was purportedly disclosed in August 2013 by the investigators who testified they provided Mr. Kitchens with the same, prior to the superseding indictment. (Motion to Dismiss, D.E. # 46, ¶ 7, ¶ 25 and ¶ 36). Without further substantiated evidence, the Court recommends that this argument be rejected.
The record reflects that AUSA Jerry Kitchen substituted in for AUSA Chris Scruggs on October 7, 2013. (Notice, D.E. # 62). The Government responds that AUSA Kitchen only had knowledge of the threats a week and a half to two weeks before the detention hearing set on September 18, 2013. (Response, D.E. # 52; Bench Brief, D.E. # 73). Further, the Government refuted this argument by offering that the Government presented new information during the sealed grand jury proceedings. (Tr., D.E. # 76, pp. 27-28). Objective evidence denotes that the prosecutor was not aware of the latter developments
The Court has reviewed the record including the police report and transcripts of the report dates and detention hearings referenced by the Defendant regarding his "lack of new information" argument. Defendant asserts that based on the police report, Paula and Jeff Culbreath were cooperating with the Government, indications of the Government's knowledge concerning an ongoing conspiracy to distribute methamphetamine. (Police Report, D.E. # 71-1). Assistant United States Attorney Chris Scruggs was the prosecutor who appeared for the Government at the report date on March 27, 2013. (Report Date, Tr., ECF No 71). Based on the in camera review of the grand jury proceedings of the prior criminal proceeding, this information was not presented to the grand jury. (Detention Hearing, D.E. # 78). Counsel for the Government during that proceeding was also AUSA Chris Scruggs.
During the detention hearing held before the District Judge on September 18, 2013 in the prior case, Detective David Bailey of the Craighead County Sheriff's Department testified that "shotguns, some — some machine guns, handguns, ... a large cache of ammunition" were discovered after a search of Defendant's residence. (Id. at 14). Other evidence offered included the certified medical records from St. Bernards and Brideway Medical Facilities. (Id. at 22). This information has no bearing on the subsequent conspiracy charges filed by AUSA Kitchens.
Finally, a review of bond appeal transcript, confirms that AUSA Kitchen was aware on February 5, 2014 that sometime in August, Defendant was attempting to locate witnesses for exculpatory purposes. (Tr., Bond Appeal, D.E. # 48, p. 10).
The argument that AUSA Kitchen violated Defendant's due process rights by suggesting the enhanced indictment was clearly resolved by the Supreme Court's ruling in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). The Court noted that as long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute and what charge to actually file or bring before the grand jury is generally entirely within his discretion. Id. at 364, 98 S.Ct. 663. The Court found that the prosecutor's desire to induce a guilty plea is an unjustifiable standard that does not impact a subsequent charging decision. In Bordenkircher, the defendant failed to enter a guilty plea to the original indictment and the prosecutor subsequently re-indicted him on more serious charges. Had the defendant entered the plea, the prosecutor agreed to recommend a sentence of five years in prison. The new indictment charged the defendant under the Kentucky Habitual Criminal Act and subjected him to a mandatory life sentence if he were found guilty. Id. at 359, 98 S.Ct. 663. Upon conviction for a principal charge of uttering a forged instrument, the resulting life sentences were upheld on appeal through the state courts. A writ of habeas corpus was filed with and denied by the federal district court. However, the Sixth Circuit reversed the district court's finding of prosecutorial vindictiveness. Id. at 360, 98 S.Ct. 663. (emphasis added).
Similarly, in Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Court prohibited a prosecutor from re-indicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy since there was a realistic likelihood of vindictiveness. Both decisions actually turned on the premise that the parties have equal bargaining power during the "give and take" of plea negotiations. However, in Blackledge, the Court distinguished pretrial and post-conviction conduct that may deter a defendant from exercising his right to appeal or collaterally attack a prior conviction. Id. at 28, 94 S.Ct. 2098.
Defendant insists that the Government, particularly AUSA Kitchen's efforts to bring a Superseding Indictment were intended to punish Defendant for exercising his due process rights and to subject him to harsher penalties including the forfeiture of his assets, in particular his real property. (D.E. # 71). Defendant asserts, "At the hearing Kitchen announced in open court that he intended on filing additional charges, against Rosse and that he would be looking at `thirty years.'" (Id. at ¶ 12). "Kitchens' intent was clear and the actions that followed rise to the level of `actual vindictiveness.'" (Id. at ¶ 13). Contrary to Defendant's conclusory statements, there is no evidence that AUSA Kitchens or any of the other associated prosecutors displayed any intent to punish Mr. Rosse.
First, the Court must determine whether the superseding indictment exposed Defendant to harsher penalties. The possible
(Indictment, D.E. # 3).
Based on the superseding indictment, the possible penalties that Defendant is exposed to in the current case are:
(Superseding Indictment, D.E. # 28-1).
The Government argues in response that Defendant is not exposed to harsher penalties based on the additional conspiracy count in the superseding indictment. (Bench Brief, ECF. No. 73, p. 12). The Government contends, "the additional drug conspiracy charge merely subjects the Defendant to the same penalties he faced under the original drug distribution charge.... and [t]he Defendant would face the same sentencing guideline range due to the fact that the same evidence underlying the § 846 charge would be considered relevant conduct if the Defendant were convicted under the § 841(a)(1) charge. Id. During the evidentiary hearing, the Government asserted if Defendant is convicted of both charges, it is likely the convictions would be merged for sentencing purposes. The Government noted that AUSA Kitchens discovered the new information involving the additional co-conspirators during the preparations for the bond hearing, leading to the superseding indictment. (Tr., D.E. # 76, pp. 48-49).
It is noteworthy that separate sentences may be imposed for the conspiracy and the underlying substantive counts. U.S. v. Blakeney, 942 F.2d 1001, 1031 (6th Cir. 1991) quoting, Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) ("[I]t is well recognized that in most cases separate sentences can be imposed for the conspiracy to do an act and for the subsequent accomplishment of that end."). "Because of the distinct nature of the conspiracy and the substantive offenses, it is within the district court's discretion to impose an additional sanction for the conspiracy count." Id. at 791, 95 S.Ct. 1284. However, convictions related to counts involving the same victim and the same transaction or counts involving the same victim and two or more transactions connected to a common criminal scheme or plan that involve at least 500 grams but no more than 1.5 kg of actual methamphetamine may be grouped together for sentencing purposes. U.S. Sentencing Guidelines Manual § 2D1.1 and § 3D1.2 (2011). Without speculating about the possible sentence the District Judge could impose upon a guilty verdict in this case, it is correct that the penalties could be merged and the potential penalties
Secondly, the additional count added in the superseding indictment is also insufficient to demonstrate a realistic likelihood of prosecutorial vindictiveness or an intent to punish. See United States v. Ewing, No. 94-3010, 1994 WL 577055 at *3 (6th Cir.1994). The facts of Ewing similarly involve a defendant who successfully moved for dismissal, also without prejudice, of an indictment charging him with one count of conspiracy to distribute cocaine base due to a Speedy Trial Violation. Id. at *1. Upon reindictment, the new charges included one count of conspiracy to distribute cocaine base, a firearms charge, and one count of possession with the intent to distribute cocaine base. On appeal, the Sixth Circuit found that "some repetition of prosecutorial efforts" in the form of a reindictment, did not constitute a sufficient basis to trigger a realistic likelihood of vindictiveness in the pretrial context. Id. at *3. The Sixth Circuit has also ruled that mere presence of a superseding indictment with additional charges that is based on previous unavailable evidence is insufficient to be presumptively unreasonable and unsupportive of a claim of vindictive prosecution, particularly where there were multiple criminal acts. Suarez, 263 F.3d at 480. The Government had other possible charges it could have pursued, i.e. unlawful possession of firearms, witness tampering, and obstruction of justice, that it chose not to pursue. This factor also dispels the notion of any intent to punish and prosecutorial vindictiveness.
Defendant reiterates in this new proceeding, the Speedy Trial claims that pertain to the prior case, specifically that the time between the original arrest in the former case and the currently pending superseding indictment, along with other delays associated with his allegedly unjustifiable mental evaluation and competency examination have been prejudicial. (D.E. # 46, ¶¶ 5-6, 8-10, 12-14, 30). He insists that because he exercised his right to have the prior indictment dismissed based on the Speedy Trial Act, the Government vindictively pursued a subsequent and enhanced superseding indictment.
(Tr., D.E. # 76, pp. 42-43). Defendant's arguments are conflicting. Defendant argues the superseding indictment was enhanced by AUSA Kitchens in order to punish by the Government refiling "the same, exact charges." Yet, the motion to dismiss, the bench brief, and arguments of Defense counsel during the evidentiary hearing, insist the charges were enhanced to punish Defendant. (Tr., D.E. # 76 at p. 43).
It is without question that the indictment in the prior case was dismissed without prejudice based on the Speedy Trial Act by Judge Fowlkes on January 22, 2014. The District Judge conducted a hearing on the Defendant's motion to dismiss and adopted the recommendation of the undersigned. The Court ruled the one hundred seven (107) day delay from Defendant's arraignment in the prior case to the Court's setting of the initial report date on February 1, 2013 was a mere oversight, led to no tactical advantage for the Government, or caused any prejudice to the Defendant. Because dismissal of an indictment without prejudice is a non-appealable interlocutory order, appeal of the ultimate disposition of a subsequent indictment is the only method by which a defendant may seek appellate review of such an order. U.S. v. Myers, 666 F.3d 402, 406 (6th Cir.2012); United States v. Bratcher, 833 F.2d 69, 73 (6th Cir.1987). To the extent that Defendant seeks review of the Order Dismissing the 2012 Case without prejudice, he must await the final disposition of this matter in order to pursue his Speedy Trial claims with the Sixth Circuit.
The Court will note that upon dismissal of Case No. 12-20229, the Government filed a complaint on that same day and Defendant was subsequently reindicted by the grand jury on January 30, 2014 in the instant case. A new Speedy Trial Clock starts each time the Government re-arrests or re-indicts the defendant. Myers, 666 F.3d at 405. United States v. Noel, 488 Fed.Appx. 928, 930 (6th Cir.2012). Therefore, Defendant's argument that the Government sought a superseding indictment with the forfeiture count almost two years after the original charge and subsequent to his successful STA big in the prior case is inconsequential. A new Speedy Trial clock began once the new charges were filed. Myers, 666 F.3d at 405.
Defendant's claims that he has been prejudiced by the detention resulted from an unwarranted psychological examination as well for delays that occurred while he was in transit to and from the medical facilities and by the time that elapsed while the mental evaluation was underway are without consequence. First, during the prior and pending action, counsel for Defendant, the Government, as well as, the Court all expressed concerns for his mental competence. At the report date, held on March 27, 2013 in the prior criminal case, the following exchange occurred:
(Tr., D.E. # 71, pp. 5-6).
Similarly, at the report date held on August 22, 2013, in the same proceeding, the following was stated:
(Tr., D.E. # 73, pp 5-6).
At the suggestion of his former counsel, Defendant offered to submit voluntarily to a mental evaluation. Id. As the matter proceeded, Defendant's condition appeared to further deteriorate impeding his ability to appear as scheduled for Court proceedings, to advise his attorney of his whereabouts, or to appropriately assist defense counsel with his representation. The District Court made it crystal clear the ultimate goal was to enable Mr. Rosse to make a competent decision regarding whether he wished to enter a change of plea or proceed to trial.
(Tr., D.E. # 73, p. 14). The District Court expressly indicated its intent to fast-track the case towards resolution. On the subsequent report date set on August 26, 2013, Defendant was still hospitalized at St. Bernards Hospital in Jonesboro, Arkansas completing his mental evaluation. (Tr., D.E. # 74, p. 6). Finally, the record reflects that Defendant failed to appear at the report date set on September 3, 2013. It was also noted that the staff at St. Bernards had been advised not to speak to counsel and that Defendant had moved to another facility without informing his attorney.
(Tr., D.E. # 75, p. 6).
Based on all of these circumstances, once Defendant was finally released from medical care and reported to Court as scheduled on September 9, 2013, the Court ordered Defendant detained and scheduled a detention and motion hearing on the Government's motion for a mental competency evaluation. (Tr., D.E. # 76, p. 12; Order, D.E. # 44).
Pursuant to 18 U.S.C. § 4241, it is appropriate to order a mental competency evaluation under the following circumstances:
After conducting a detention hearing on September 18, 2013, the Court found that Defendant had missed several court dates without explanation to his counsel or the Court, had exhibited inconsistent and highly questionable behavior, finally concluding that he was a flight risk and in need of a competency evaluation. (Motion, D.E. # 44, Order, D.E. # 58). As such, Defendant was transported by the U.S. Marshals to a nearby medical facility for mental examination and competency evaluation pursuant to 18 U.S.C. § 4241 and 4242.
The Sixth Circuit has imposed a presumptive limit of ten days for transportation to a facility for a competency hearing. U.S. v. Turner, 602 F.3d 778, 782 (6th Cir.2010) citing 18 U.S.C. 3161(h)(1)(F). The Court has also noted that the rules generally limit the period for a defendant's
Defendant argued that a review of the grand jury proceedings in both matters would confirm whether there has been prosecutorial vindictiveness in this case and filed a Motion to Disclose.
In particular, the Government stated:
The Sixth Circuit has stated that the "General Rule of Secrecy' that normally prohibits disclosure of matters occurring before the grand juries .... reflects a `strong' and `long-established policy' from which departures are permitted .... only in cases of `compelling necessity' ..." In re Grand Jury Proceedings, 841 F.2d 1264, 1268 (6th Cir.1988). Compelling necessity allows "for the disclosure of grand jury materials in situations where there is
In this instance, an in camera review was conducted of the grand jury proceedings. After review, the Court concludes that new information was presented to the March 2014 grand jury, some of which was developed since the September 2012 grand jury empanelment.
Finally, the Court allowed Defendant to supplement his pleadings and refer to cases he offered as potential exhibits during the evidentiary hearing on May 28, 2014. Counsel for the Defendant argued the prosecutorial strategies of these three Assistant United States Attorneys during the past five years in similar drug cases having superseding indictments demonstrates prejudice and prosecutorial vindictiveness. The Court requested that defense counsel summarize his findings in those cases and the evidence he wished the Court to consider in its report and recommendation. The Court has conducted a cursory review of the various cases offered by Defendant and finds those cases irrelevant in this proceeding regarding a realistic likelihood of prosecutorial vindictiveness or misconduct. The test for prosecutorial vindictiveness is whether there exists a realistic likelihood of vindictiveness in the particular factual situation presented. Andrews, 633 F.2d at 453. Each case turns on its own unique facts and only a full review of that particular case is relevant to determine whether a constitutional violation has occurred. Byrd v. Collins, 209 F.3d 486, 530 (6th Cir.2000). As noted in Andrews, other appellate courts have similarly addressed vindictiveness questions on a case-by-case basis. Id. at n. 4; See United States v. Jamison, 505 F.2d 407 (D.C.Cir.1974), Lovett v. Butterworth, 610 F.2d 1002 (1st Cir.1979); cert. denied, 447 U.S. 935, 100 S.Ct. 3038, 65 L.Ed.2d 1130 (1980); United States v. Ricard, 563 F.2d 45 (2d Cir. 1977); United States v. Johnson, 537 F.2d 1170 (4th Cir.1976); United States v. Partyka, 561 F.2d 118 (8th Cir.1977); United States v. McFadyen-Snider, 590 F.2d 654 (6th Cir.1979).
Upon a review of all of the pleadings and transcripts from the records of both cases, along with an in camera review of the grand jury proceedings and the demonstrative case listing, the undersigned recommends that the evidence does not demonstrate prosecutorial vindictiveness and recommends that Defendant's Motion to Dismiss be
(Tr., ECF. 48, pp. 25-27).
