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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 Misconduct [124]. For the reasons explained below, the undersigned RECOMMENDS that said Motion be DENIED.

         I. BACKGROUND

         In the instant pro se motion, Mr. Barr asserts that the Assistant United States Attorney (“AUSA”) responsible for this case, Jessica Morris, Esq., sent discovery directly to the home address of his co-defendant, Nadya Diaz. He further contends that the content of this discovery was “manipulated as well to show things that were not true”; and that this purported disclosure was orchestrated to “to turn Barr's co-defendant and girlfriend” against him. (Def.'s Mem. [124] 1-2.) He then cites an assortment of criminal statutes and tort theories regarding privacy interests that have allegedly been violated. (Id. at 3-4.)

         AUSA Morris responds that the U.S. Attorney's Office does not send correspondence, including discovery materials, to represented parties such as Mr. Barr's co-defendant, Ms. Diaz. Rather, in all cases, discovery materials are provided to a defendant's lawyer. In this case, following defendant Diaz's arraignment, Ms. Morris represents that arrangements were made between the U.S. Attorney's Office and Ms. Diaz's attorney to provide electronic discovery on a hard drive provided by the Federal Public Defender's Program.[1] To the extent that Ms. Diaz received discovery materials directly, those likely would have come from her own lawyer.[2] The Government stated that it could speak only to what was sent from the U.S. Attorney's Office to Ms. Diaz's counsel, and as stated above, nothing was sent by that Office directly to Ms. Diaz.

         II. ANALYSIS

         “‘[D]ismissal of an indictment for prosecutorial misconduct is an extreme sanction which should be infrequently utilized.'” United States v. Accetturo, 858 F.2d 679, 681 (11th Cir. 1988) (quoting United States v. Pabian, 704 F.2d 1533, 1536 (11th Cir. 1983)). “[I]n the case of even the most egregious prosecutorial misconduct, . . . the dismissal of an indictment in such a case must depend upon a showing of actual prejudice to the accused.” United States v. Merlino, 595 F.2d 1016, 1018 (5th Cir. 1979).[3]

         There simply is no factual basis for a prosecutorial misconduct claim here. AUSA Morris did not send discovery directly to Ms. Diaz. If Mr. Barr's co-defendant received discovery directly, it came from her lawyer. Defendant Barr also fails to submit any probative evidence showing that any discovery produced in this case was manipulated.

         Until Mr. Barr was allowed to proceed pro se, he had been represented by able counsel. That counsel (now acting on a stand-by basis) did not see fit to file a motion to dismiss for prosecutorial misconduct because he knew that it would be frivolous, just like the one Mr. Barr eventually filed. Given the frivolousness of Mr. Barr's claims, there is no need for an evidentiary hearing on this Motion.

         III. CONCLUSION

         For the reasons stated above, the undersigned RECOMMENDS that Defendant Barr's Pro Se Motion to Dismiss for Prosecutorial Misconduct [124] be DENIED.

         SO RECOMMENDED.

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