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United States v. Barr

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

May 14, 2019

UNITED STATES OF AMERICA,
v.
MICHAEL ANTHONY BARR, Defendant.

          ORDER

         This case is before the Court on Defendant's Motion to Dismiss Indictment for Prosecutorial Vindictiveness [125], as well as on the Non-Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson [134] and Defendant's Objections to the Non-Final Report and Recommendation [144].

         I. Standard of Review

         When reviewing a magistrate judge's report and recommendation, the district court must conduct "a de novo determination of those portions of the report ... to which objection is made." 28 U.S.C. § 636(b)(1).

         Factual findings of the magistrate judge are subject to de novo review only if a party files a "proper, specific objection." Macort v. Prem. Inc.. 208 Fed.Appx. 781, 784 (11th Cir. 2006); United States v. Gaddy. 894 F.2d 1307, 1315 (11th Cir. 1990). If no party files a timely objection to a factual finding in the report and recommendation, the Court reviews that finding only for clear error. Macort. 208 Fed.Appx. at 784.

         Legal conclusions, however, are subject to de novo review even if no party specifically objects. United States v. Keel. 164 Fed.Appx. 958, 961 (11th Cir. 2006); United States v. Warren. 687 F.2d 347, 347 (11th Cir. 1982).

         II. Background

         On November 14, 2017, a federal grand jury in the Northern District of Georgia returned a two-count Indictment against Defendant. (Docket Entry No. 1.) In Count One, the United States charged Defendant with unlawfully possessing a firearm after being convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). (Id. at 1.) In Count Two, the United States charged Defendant with unlawfully using a false means of identification-specifically a temporary motor vehicle registration under the alias "C.F."-in connection with acts constituting a felony under state law, in violation of 18 U.S.C. § 1028(a)(7). (Hat2.)

         The government's investigation into Defendant's criminal activities, including his illegal possession of firearms and his use of the false name "C.F.," continued for several months after the return of the Indictment. Parts of the ongoing investigation indicated that Defendant's girlfriend, Nadya Ivette Diaz ("Ms. Diaz"), directly assisted him in illegally obtaining firearms. (See Gov't Ex. 5 (Docket Entry No. 130-5).) The government's efforts also revealed information concerning additional firearm-related offenses. (See, e.g.. Gov't Ex. 2 (Docket Entry No. 130-2); Gov't Ex. 3 (Docket Entry No. 130-3).)

         As these proceedings continued, Defendant filed a motion to suppress some of the government's evidence. (Docket Entry No. 21.) After a hearing on that motion, (Docket Entry No. 28), Defendant's counsel requested a plea offer from the prosecution. (Gov't Resp. (Docket Entry No. 130) at 3.) Before any such offer was given, however, the grand jury returned a Superseding Indictment on June 12, 2018. (Docket Entry No. 35.) The Superseding Indictment added seven new counts against Defendant-for a total of nine-and named Ms. Diaz as a co-defendant. (See generally id.)

         After the return of the Superseding Indictment, counsel for the government offered a plea agreement. The offer's terms were communicated to Defendant's counsel by a letter dated July 19, 2018. (See Gov't Ex. 6 (Docket Entry No. 130-6).) Defendant did not accept that plea offer, and this case has since continued to proceed toward trial.

         On March 29, 2019, Defendant filed a Motion to Dismiss Indictment. (Docket Entry No. 125.) In his Motion, Defendant seeks dismissal of the Superseding Indictment based on a claim of vindictive prosecution. (Id. at 6.) Specifically, Defendant contends that the prosecution sought the Superseding Indictment solely as a punishment for his refusal to accept a plea bargain. (Id. at 2.)

         In accordance with this Court's Local Rules, Defendant's Motion was referred to a magistrate judge. After thorough review, United States Magistrate Judge Walter E. Johnson recommended that the Court deny the Motion. (Non-Final Report & Recommendation (Docket Entry No. 134) at 11.) Defendant filed timely objections to Judge Johnson's Non-Final Report and Recommendation. (Objs. (Docket Entry No. 144).) The Court accordingly finds this matter ripe for resolution.

         III. Discussion

         The Court finds that Judge Johnson accurately stated the law governing claims of vindictive prosecution. Importantly, because the criminal charges in dispute were added prior to trial, Defendant bears the burden of proving "actual vindictiveness." United States v. South, 295 Fed.Appx. 959, 967 (11th Cir. 2008) (per curiam). To demonstrate "actual vindictiveness," Defendant must show (1) that the prosecutor was "actually motivated by a desire to punish [him] for the exercise of his rights," and (2) that the charges against him were a result of that animus. Unite ...


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