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United States v. Barr

United States District Court, N.D. Georgia, Rome Division

April 23, 2019

UNITED STATES OF AMERICA,
v.
MICHAEL ANTHONY BARR and NADYA IVETTE DIAZ, Defendants.

          NON-FINAL REPORT AND RECOMMENDATION

          WALTER E. JOHNSON UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on defendant pro se Michael Anthony Barr's Motion to Dismiss for Prosecutorial Vindictiveness [125]. For the reasons explained below, the undersigned RECOMMENDS that said Motion be DENIED.

         I. BACKGROUND

         Although Mr. Barr's Motion is six pages long, most of it consists of quotations from cases. The only relevant factual claims made in the Motion are that Mr. Barr was indicted in November 2017, and that after he refused to plea bargain, the prosecution added more counts to the Indictment and added his girlfriend, Nadya Diaz, as a defendant. (Def.'s Mem. [125] 2.) As discussed below, these claims fail to find support in the record.

         On November 14, 2017, a grand jury in the Northern District of Georgia returned a two-Count Indictment [1] against defendant Barr. In Count One, the Government charged that on or about August 31, 2017, Mr. Barr, having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess at least one of six firearms listed therein, and that said possession, being in and affecting interstate and foreign commerce, violated 18 U.S.C. § 922(g)(1). In Count Two, the Government charged that on or about April 13, 2016, Mr. Barr knowingly used, without lawful authority, a means of identification of another person in connection with any unlawful activity that constitutes a felony under state law (i.e., O.C.G.A. § 16-10-71), in that he obtained a temporary motor vehicle registration in the identify of C.F., in violation of 18 U.S.C. § 1028(a)(7).

         The Government's investigation into Mr. Barr's alleged unlawful possession of firearms, his use of the alias C.F., the role Ms. Diaz played in providing firearms to him, and the sources of their assets, predated the Indictment and continued thereafter. (Gov't Resp. [130] 2.) For example, on October 26, 2017, the FBI obtained a search warrant on eight electronic devices (seven phones and one computer) which were seized from the Mitchell Bridge Road residence on August 31, 2017. (See Search Warrant for Electronic Devices, authorized by the undersigned on Oct. 26, 2017, No. 4:17-MC-23; copy filed as Gov't Ex. 1 [130-1].) According to the Government, review and exploitation of these devices took months and yielded information relevant to additional charges regarding firearms violations and a conspiracy between Mr. Barr and Ms. Diaz. (See FBI Report dated Jan. 18, 2018 re: Review of Photos found on Barr's Cell Phone, copy filed as Gov't Ex. 2 [130-2]; FBI Report dated April 26, 2018 re: Review of Videos on Barr's Computer, copy filed as Gov't Ex. 3 [130-3].)

         Pursuant to its ongoing investigation, the Government also obtained a search warrant for a Google email account used by both Mr. Barr and Ms. Diaz. (See Search Warrant directed to Google, authorized by the undersigned on Feb. 14, 2018, No. 4:18-MC-10, copy filed as Gov't Ex. 4 [130-4].) The Government shows that this search warrant yielded additional information regarding Mr. Barr and Ms. Diaz's firearms activities in the form of an email exchange to a gunsmith from “Mike Diaz ” regarding a firearm that Nadya Diaz purchased from a gun store in Cumming, Georgia. (See FBI Report dated April 6, 2018 re: Review of Google Email, copy filed as Gov't Ex. 5 [130-5].)

         On May 14, 2018, this Court held an evidentiary hearing [28] on Mr. Barr's Motion to Suppress Evidence [21] challenging the warrantless entry into his home on August 31, 2017. Following that hearing, Mr. Barr's counsel requested a plea offer. (See Gov't Resp. 3.) Before an offer was extended, on June 12, 2018, the grand jury returned a nine-Count Superseding Indictment [35] which added Nadya Diaz as a co-defendant and included new charges summarized below:

Count, Defs.

Charge

Date of Conduct

Max. Penalty

1 Barr Diaz

Conspiracy, 18 U.S.C. § 371

Jan. 2016 to Aug. 31, 2017

5 yrs.

2 Barr Diaz

Felon in Possession, Aiding and Abetting, 18 U.S.C. §§ 922(g)(1) and 2

Aug. 31, 2017

10 yrs.

3 Barr

Felon in Possession, 18 U.S.C. § 922(g)(1)

Aug. 31, 2017

10 yrs.

4 Barr

Possession of Silencer, 26 U.S.C. § 5861(d)

Aug. 31, 2017

10 yrs.

5 Barr

Possession of Short-barreled Shotgun, 26 U.S.C. § 5861(d)

Aug. 31, 2017

10 yrs.

6 Barr

Felon in Possession, 18 U.S.C. § 922(g)(1)

Feb. 6, 2017

10 yrs.

7 Barr

Possession of Firearm by Controlled Substance User, 18 U.S.C. § 922(g)(3)

Feb. 6, 2017

10 yrs.

8 Barr Diaz

Felon in Possession, Aiding and Abetting, 18 U.S.C. §§ 922(g)(1) and 2

Apr. 20, 2016

10 yrs.

9 Barr

Identity theft, 18 U.S.C. § 1028(a)(7)

Apr. 13, 2016

5 yrs.

(See Gov't Resp. 3; the Court uses above the chart submitted by the Government for convenience sake.)

         Following the return of that Superseding Indictment, the Government's counsel communicated via letter the terms of a plea agreement to counsel for Mr. Barr. (See letter of July 19, 2018, copy filed as Gov't Ex. 6 [130-6]). The letter provides in relevant part as follows:

At the conclusion of the evidentiary hearing, you requested that the government extend a plea offer. Our offer is the following: in exchange for Mr. Barr's plea of guilty to counts 1, 2 and 9 of the superseding indictment and the forfeiture of the firearms and ammunition seized in the case, the government will recommend a sentence at the high-end of the guideline range as calculated by the Court. We can litigate the applicability of any of the guidelines and you are free to advocate for a low-end sentence. We will move to dismiss the remaining charges as part of the plea. To avail himself of this offer, Mr. Barr would need to withdraw[] his pending motions prior to the filing of the government's post-hearing brief. If unconstrained by a plea agreement, I will likely seek an upward variance on the basis that guidelines under-represent Mr. Barr's criminal history and request a sentence of 10 years.
I have a trial scheduled for July 23, 2018 in U.S. v. Brandon Panky, 4:17-cr-23-HLM in Rome, Georgia. As a result, I am requesting your consent for an additional 30 days to complete the government's post-hearing brief on your motion to suppress, which is currently due to be filed with the Court on July 25, 2018. Please let me know your position on this request at your earliest convenience. To the extent you would like ...

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