United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant's Motion to
Dismiss for Prosecutorial Vindictiveness (Doc. 147). Having
reviewed the accompanying briefing and being otherwise fully
advised, the Court will deny the Motion.
is facing charges for multiple violations involving the
possession and distribution of marijuana and possession of
unlawful firearm silencers. See Doc. 138. On
September 13, 2016 the Government sought and obtained a
Second Superseding Indictment charging Mr. Thayer with
additional crimes to those charged in the First Superseding
Indictment following Defendant's filing of his second
Motion to Suppress. Id. On November 4, 2016,
Defendant filed a Second Motion to Dismiss, seeking dismissal
of the additional charges on the basis of prosecutorial
vindictiveness. Doc. 147. The Government filed its response
on November 15, 2016. Doc. 148. On March 14, 2017, this Court
held a hearing in relation to this motion as well as
Defendant's Second Motion to Suppress. Doc. 155.
February 13, 2013, Defendant was charged with five counts in
an Indictment: Possession of an Unregistered Firearm (Short
Barreled Rifle) in violation of 26 U.S.C. §§
5841(a), 5845(a)(d), 5861(d), and 5871 (Count 1); Possession
of an Unregistered Firearm (Silencer), in violation of 26
U.S.C. §§ 5841(a), 5845(a)(7), 5861(d) and 5871,
and 18 U.S.C. § 921(a)(24) (Count 2); Making of an
Unregistered Firearm (Silencer), in violation of 26 U.S.C.
§§ 5841(a), 5822, 5845(a)(7), 5861(f) and 5871, and
18 U.S.C. § 921(a)(24) (Count 3); Manufacturing
Marijuana in violation of 21 U.S.C §§ 841(a)(1) and
841(b)(1)(D) (Count 4); and Possession of a Firearm in
Furtherance of a Drug Trafficking Crime, in violation of 18
U.S.C. § 924(c) (Count 5). Doc. 2. On August 8, 2013,
Mr. Thayer filed his first Motion to Suppress on the grounds
of insufficient probable cause supporting the search warrant.
See Doc. 60. On August 14, 2013, Defendant was
charged in a Superseding Indictment with an added charge of
Maintaining Drug-Involved Premises in violation of 21 U.S.C.
§ 856(a)(1) (Count 6). Doc. 65.
September 12, 2013, this Court held an evidentiary hearing
regarding Defendant's Motion to Suppress. Doc. 81. On
September 18, 2013, Defendant filed a “Motion to
Reconsider or in the Alternative, Supplemental Motion in
Support of His Motion to Suppress.” See Doc.
83. On October 7, 2013, this Court issued an Order denying
Defendant's Motions to Suppress and for Supplemental
Motion/Motion for Reconsideration. Doc. 89. Thereafter, on
October 24, 2013, Defendant entered into a plea agreement
with the United States to Counts 1 and 2 of the Superseding
Indictment. Doc. 96. However, following Defendant's
filing his Sentencing Memorandum (Doc. 116), the Government
withdrew the plea agreement and resumed its Accordingly, the
Court issues this Memorandum Opinion and Order in place of a
Findings of Fact and Conclusions of Law. preparation for
trial on the basis that the memorandum violated the
Booker bar provision of the agreement. See
9, 2016, Defense Counsel Robert Gorence sent Email
correspondence to AUSA Maria Armijo asking her to describe
with particularity which of the three silencers identified
corresponded to which charge and informed her of
Defendant's intention to file a Second Motion to
Suppress. Doc. 147-1 at 1. Defense Counsel Gorence sent a
follow-up Email on June 27, 2016 reiterating his request for
specificity regarding which silencer relates to which count
and explaining the legal basis for Defendant's
anticipated motion to suppress. Doc. 147-1 at 2. That same
day, AUSA Armijo responded that she would be filing a
superseding indictment to make clear which silencer was
involved in each count to avoid the need for a bill of
particulars. Doc. 147-1 at 3.
26, 2016, Defendant filed his Second Motion to Suppress. Doc.
127. On August 10, 2016, AUSA Armijo sent Email
correspondence to Defense Counsel Bowles. In it, she stated
her intention to add additional firearms charges, including
one involving a short-barrel rifle with a silencer and warned
that, if the case were not resolved before the superseding
indictment was filed, Defendant potentially risked a 25 year
minimum sentence which could be doubled due to
Defendant's location within a school zone. See
Doc. 147-2 at 1. On September 13, 2016, Defendant was charged
in a Second Superseding Indictment with an added charge of 26
U.S.C. §§ 5841(a), 5845(a)(7), 5861(d) and 5871:
Possession of an Unregistered Firearm - Silencer, as well as
specific descriptions of each silencer based on a request by
Defendant, and an added firearm in the count charging of 18
U.S.C. § 924(c): Possession of a Firearm in Furtherance
of a Drug Trafficking Crime. Doc. 138
Analysis: Defendant's Motion to Dismiss
Second Motion to Dismiss, Defendant seeks dismissal of the
two additional charges added in the Second Superseding
Indictment, Possession of a Silencer and Possession of a
Firearm in Furtherance of Drug Trafficking Crime, on the
basis that these charges were added in retaliation for
Defendant filing his second Motion to Suppress. Doc. 147 at
2-3. Defendant contends that these additions followed an
Email threat by prosecutors, were not justified by new
information, and subject Defendant to additional penalties
and sentencing requirements. Id. at 3. The
Government responds that the motion should be denied because
there is no evidence of actual or presumed vindictiveness.
Doc. 148. The Government further explains that each of these
additions to the Second Superseding Indictment were either
added at Defendant's request to clarify the charges
against him or reinstated due to Defendant violating the
conditions of his plea agreement. Id.
Government is generally vested with broad discretion in the
decision to charge defendants with crimes, so long as it has
reasonable cause to believe that the accused committed an
offense defined by statute. See, e.g. Bordenkircher v.
Hayes, 434 U.S. 357, 364 (1978); United States v.
Goodwin, 457 U.S. 368, 380, n. 11 (1982). However, the
Government may not punish a defendant for exercising his
constitutional rights in the course of criminal proceeding.
United States v. Raymer, 941 F.2d 1031, 1040 (10th
Cir. 1991); see also Bordenkircher, 434 U.S. at 363
(“[t]o 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, and for an agent of the State to pursue a
course of action whose objective is to penalize a
person's reliance on his legal rights is patently
unconstitutional.”) (internal citation omitted). In
order to establish a due process violation from a vindictive
prosecution, a defendant bears the initial burden of showing
either: (1) actual vindictiveness or (2) a realistic
likelihood of vindictiveness which gives rise to a
presumption of vindictiveness. Goodwin, 457 U.S. at
374; Raymer, 941 F.2d at 1040. Once a defendant has
satisfied this threshold, the burden then shifts to the
Government to justify its decision with legitimate,
articulable, and objective reasons. See United States v.
Wood, 36 F.3d 945, 946 (10th Cir. 1994); United
States v. Doran, 882 F.2d 1511, 1523 (10th Cir. 1989).
Actual vindictiveness '
of actual vindictiveness requires “objective evidence
that a prosecutor acted in order to punish the defendant for
standing on his legal rights” United States v.
LaDeau, 734 F.3d 561, 566 (6th Cir. 2013); see also
United States v. Wilson, 262 F.3d 305, 314 (4th Cir.
2001) (holding that actual vindictiveness must demonstrate:
“(1) the prosecutor acted with genuine animus toward
the defendant and (2) the defendant would not have been
prosecuted but for that animus.”). “Attempting to
show actual vindictiveness has been characterized as
exceedingly difficult and an onerous burden.”
United States v. Dupree, 323 F.3d 480, 489 (6th Cir.
2003) (internal quotations omitted); see also United
States v. Gary, 291 F.3d 30, 34 (D.C. Cir. 2002);
United States v. Jarrett, 447 F.3d 520, 527 (7th
Cir. 2006) (finding no actual vindictiveness where Defendant
provided no “smoking gun” statement of outright
prosecutor animus and instead relied on speculated motives
and suspicious timing). Here, Defendant claims that evidence
clearly shows that the charges added in the Second
Superseding Indictment were brought in retaliation for his
filing his Second Motion to Suppress.” (Doc. 147 at 4.)
In support of this contention, Defendant has provided an
Email exchange in which the Government representative, AUSA
Armijo, informed Defense Counsel ...