United States District Court, N.D. Georgia, Rome Division
case is before the Court on Defendant's Motion to Dismiss
Indictment for Prosecutorial Vindictiveness , as well as
on the Non-Final Report and Recommendation of United States
Magistrate Judge Walter E. Johnson  and Defendant's
Objections to the Non-Final Report and Recommendation .
Standard of Review
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).
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.
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
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). (Id. at
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).)
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.)
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.
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.)
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.
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 ...