Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Thayer

United States District Court, D. New Mexico

April 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TREVOR LEE THAYER, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Procedural Posture

         Defendant 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.[1] Doc. 155.

         II. Background

         On 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.

         On 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 Doc. 119.

         On June 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.

         On July 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

         III. Analysis: Defendant's Motion to Dismiss

         In his 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.

         The 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).

         A. Actual vindictiveness '

         Demonstration 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.