Opinion
Criminal Action No. 18-cr-00536-CMA-2
05-31-2019
UNITED STATES OF AMERICA, Plaintiff, v. 2. ALEJANDRO RESENDIZ, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COUNT THREE OF THE SECOND SUPERSEDING INDICTMENT
This matter is before the Court on Defendant Resendiz' Motion to Dismiss Count Three of the Second Superseding Indictment. (Doc. # 95.) The Government filed a Response (Doc. # 107) on May 29, 2019, and Defendant filed a Reply (Doc. # 108) on May 30, 2019. Based on the reasons that follow, the Court grants the Motion.
I. BACKGROUND
Defendant was originally charged by indictment with Count 1, conspiracy to distribute and to possess with the intent to distribute 500 grams and more of a mixture and substance containing a detectable amount of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b) and Count 2, knowingly and intentionally possessing with the intent to distribute 500 grams and more of cocaine and aiding and abetting the commission of that offense. (Doc. # 24 at 1-2.) The indictment also included a third charge against a codefendant, Carlos Posada-Cardenas, for knowingly using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Id. at 2.) Subsequently, on March 20, 2019, the Government filed a Superseding Indictment. (Doc. # 40.) The Superseding Indictment added an additional codefendant, but the charges against Defendant remained the same.
Defendant proceeded to trial on April 22, 2019. On April 23, 2019, Defendant chose to exercise his right to testify in his own defense. (Doc. # 73.) However, because English is not Defendant's first language, Defendant also chose to utilize the assistance of an interpreter during his testimony and cross examination. During the course of his testimony and cross examination, the interpreter engaged in conduct that interfered with Defendant's right to present a defense and his right to a fair trial. Specifically, the interpreter disrupted the proceedings, made substantive errors in translation, and his translation was often incomplete. Additionally, the interpreter became argumentative with Defendant, and the interpreter was visibly frustrated with him, which undoubtedly prejudiced the jury's perception of Defendant.
The facts of this case are such that Defendant's testimony and the jury's interpretation of his credibility are likely to have a great influence on the jury's ultimate decision. The Government alleges that Defendant conspired to possess and sell narcotics and that he knowingly assisted others in doing the same. At trial, the Government relied on circumstantial evidence to suggest that Defendant had the requisite state of mind that is a necessary element of the offenses with which Defendant had been charged. Defendant sought to counter the circumstantial evidence with his personal knowledge of his conduct. Therefore, because of the gravity of Defendant's testimony and because of the degree to which the interpreter impeded Defendant's presentation of his defense, the Court declared a mistrial on April 24, 2019. (Doc. # 72.) The Court set a second trial for June 3, 2019. (Id.)
Subsequently, on May 9, 2019, the Government filed a Second Superseding Indictment ("SSI"). (Doc. # 80.) The SSI added an additional charge against Defendant. Specifically, Count 3 alleges that Defendant knowingly possessed a firearm in furtherance of a drug crime and that he aided and abetted the commission of that offense. (Id. at 2.) The Government did not base its charging decision on any facts that it discovered after trial. See (Doc. # 107).
On May 15, 2019, Defendant filed a Motion for Disclosure of Grand Jury Testimony and Statements of the Government Before the Grand Jury Under Federal Rules of Criminal Procedure, Rule 6(E)(ii). (Doc. # 83.) Defendant sought access to the grand jury materials to support the instant Motion, which argues that Count 3 should be dismissed on the basis of prosecutorial vindictiveness. See (id.). The Government voluntarily produced transcripts underlying the SSI, but it argued that the transcripts from the prior two indictments were irrelevant. (Doc. # 87 at 1.)
The Court rejected the Government's argument and granted Defendant's motion for disclosure of the grand jury materials. (Doc. # 99 at 5.) Additionally, the Court ordered the Government to "tender the transcripts from the Grand Jury proceedings underlying the Indictment (Doc. # 24) and the Superseding Indictment (Doc. # 45) to Defendant . . . ." (Id.) However, the Government did not fully comply with the Court's Order, producing transcripts that did not contain the "remarks of counsel before the Grand Juries convened . . . ." (Doc. # 108.) The portions of the transcripts that the Government chose not to produce may have been relevant to Defendant's prosecutorial vindictiveness argument, and the Court is unaware of any reasons that would justify the Government's failure to comply with this Court's Order.
II. LEGAL STANDARD
The Due Process Clause prohibits a prosecutor from using criminal charges to penalize a defendant's valid exercise of constitutional or statutory rights. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) ("To 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."). To succeed on a claim of prosecutorial vindictiveness, the defendant must show either actual or presumptive vindictiveness. United States v. Ray, 899 F.3d 852, 860 (10th Cir. 2018) (citing United States v. Creighton, 853 F.3d 1160, 1162 (10th Cir. 2017)). Actual vindictiveness occurs when the government's decision to prosecute "was 'a direct and unjustifiable penalty for the exercise of a procedural right' by the defendant." Id. (quoting United States v. Raymer, 941 F.2d 1031, 1041 (10th Cir. 1991) (quoting United States v. Goodwin, 457 U.S. 368, 384 n.19 (1982))).
On the other hand, to establish presumptive vindictiveness, a defendant must show that "as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or punitive animus towards the defendant because he exercised his specific legal right." Id. (quoting United States v. Wall, 37 F.3d 1443, 1448 (10th Cir. 1994) (quoting Raymer, 941 F.2d at 1042)). If the defendant establishes a presumption of vindictiveness, the burden shifts to the prosecution to justify its charging decisions with "legitimate, articulable, objective reasons." United States v. Wood, 36 F.3d 945, 946 (10th Cir. 1994) (quoting Raymer, 941 F.2d at 1040).
III. ANALYSIS
In the instant case, Defendant argues that there is "a presumption of vindictiveness and actual vindictiveness in the Government's addition of Count three" to the Second Superseding Indictment. (Doc. # 95 at 5.) The Court will address each argument in turn.
A. ACTUAL VINDICTIVENESS
Defendant has produced evidence that the Government's decision to add Count 3 to the SSI after the mistrial in this case was "a direct and unjustifiable penalty" for Defendant's choice to exercise his constitutional rights. Ray, 899 F.3d at 860. Specifically, the Government pursued a charge alleging that Defendant possessed a firearm in furtherance of a drug crime when the Government knew that there were no facts that could plausibly substantiate such an allegation.
Count 3 of the SSI charges Defendant with knowingly possessing a firearm in furtherance of a drug crime. In order to establish the elements of the offense, the Government must show a "direct connection between the firearm and the drug offense." United States v. Iiland, 254 F.3d 1264, 1274 (10th Cir. 2004). If there is no evidence connecting a gun to a drug transaction, a court cannot sustain a conviction for the offense. Id.
In the grand jury proceedings underlying the Government's decision to add Count 3 to the SSI, the Government relied solely on the testimony of Special Agent Lee Schoenike. Mr. Schoenike testified that:
• Defendant drove to the scene of the drug transaction with a codefendant riding in the passenger seat of the car. (Doc. # 95-1 at 6.)Additionally, Mr. Schoenike opined that the firearm was accessible to Defendant despite the fact that Defendant had been driving the vehicle while the firearm was beneath the passenger seat and despite the fact that Mr. Schoenike stated that he "didn't see [the firearm] in the car," which indicates that Mr. Schoenike had no personal knowledge to substantiate his opinion that the firearm was actually accessible to Defendant. (Id. at 12.) Therefore, the record is devoid of evidence that the firearm was either connected to Defendant in any way or that the firearm was used "in furtherance" of a drug crime. Further, there has been no evidence—either during the first trial, during prior proceedings in this Court, or during any of the grand jury proceedings—that Defendant had any knowledge that the firearm was in the vehicle.
• The two men exited the vehicle, and the codefendant executed the drug transaction by trading drugs for currency, at which time the police arrested the defendants. (Id.)
• A loaded firearm was found under the passenger seat of the car that Defendant was driving. (Id. at 7.)
Mr. Schoenike stated that he did not see the location of the firearm in Defendant's vehicle in response to the following question from the Grand Jury Deputy Foreperson: "The firearm, was it in fairly visible sight when it was found in the car or was it tucked under something?" (Doc. # 95-1 at 12.)
Moreover, prior to the mistrial in this case, Mr. Schoenike testified at a hearing on April 4, 2019, before this Court. At the hearing, Mr. Schoenike stated under oath that the firearm recovered from Defendant's vehicle did not belong to Defendant. (Doc. # 59 at 20.) Similarly, at the grand jury proceedings underlying the indictments that preceded the mistrial, Mr. Schoenike never stated that the firearm was accessible to Defendant. See (Doc. ## 108-2, 108-3). In fact, at one of the grand jury proceedings, Mr. Schoenike implied that the firearm was within only the codefendant passenger's control. (Doc. # 108-3 at 6) (in response to the question, "[w]here was [the firearm] and in whose proximity was it?", Mr. Schoenike answered that the firearm was "directly under" the passenger codefendant).
There was no evidence admitted during the first trial that would reasonably suggest that the firearm in question belonged to Defendant, that he knew it was in the car, or that the firearm was used in furtherance of a drug crime. Additionally, the Government has not asserted that it discovered new evidence after the first trial that connected the firearm to Defendant. Nevertheless, the Government decided to charge Defendant with a firearms offense despite having no evidence to support the charge and despite knowing that the firearm did not belong to Defendant. That decision was made soon after Defendant exercised his right to testify in his own defense and persisted in asserting his right to a jury trial. The most plausible explanation for such a decision is that the Government sought to penalize Defendant for exercising his rights and deter him from continuing to do so, which is "a due process violation of the most basic sort." Bordenkircher, 434 U.S. 357 (1978).
B. PRESUMPTIVE VINDICTIVENESS
In addition to producing evidence of actual vindictiveness, Defendant has also produced evidence that raises a presumption of vindictiveness. Therefore, the burden of proof shifts to the Government to provide a legitimate explanation for its charging decision. However, as illustrated below, the Government has failed to meet its burden.
1. Reasonable Likelihood of Vindictiveness
Generally, where a modification in a charging decision follows a mistrial occurring for neutral reasons, such as a hung jury, and without objection from the government, no presumption of vindictiveness is raised because there is no reason why the prosecutor would consider the defendant responsible for the need for a new trial. United States v. Contreras, 108 F.3d 1255, 1263 (10th Cir. 1997) (citing United States v. Doran, 882 F.2d 1511, 1520 (10th Cir. 1989)). However, the Supreme Court has refused to adopt per se rules in the prosecutorial vindictiveness context. Doran, 882 F.2d 1521. Therefore, to determine whether a reasonable likelihood of vindictiveness exists in the post-mistrial context, courts look to the totality of the objective circumstances surrounding the prosecutorial decision. Id.
In the instant case, the objective circumstances surrounding the Government's decision to add Count 3 to the SSI raise a presumption of vindictiveness. As a preliminary matter, the reason a mistrial occurred in this case is distinct from a hung jury. Although the mistrial in this case arose from circumstances that were not within the control of the parties—i.e. interpreter misconduct—the cause of the mistrial took place as Defendant was actively asserting his constitutional right to testify in his own defense.
In fact, the trial concluded immediately after the Government's cross examination of Defendant. Cross examination lasted for over one hour, and it involved heated exchanges between counsel for the Government and Defendant. For instance, at one point Defendant stated, "I feel that the AUSA is not understanding very well what I have been saying from the beginning . . . ." (Doc. # 84 at 231.) In response, counsel for the Government stated, while visibly frustrated, "I am happy he [Defendant] doesn't feel like I understand." (Id.)
The next morning, the Court declared a mistrial, and the Government's decision to add an additional charge to the SSI followed shortly thereafter. Given the tension and frustration that was pervasive during Defendant's cross examination, there is a reasonable likelihood that animosity towards Defendant influenced the Government's charging decision after the mistrial. Accordingly, there is a reasonable likelihood that the charging decision, "would not have occurred but for hostility or punitive animus towards the defendant because he exercised his specific legal right." Ray, 899 F.3d at 860 (citation omitted).
The likelihood of hostility or punitive animus is magnified when placed in context with additional factual circumstances surrounding the Government's charging decision. Specifically, the Government had no evidentiary basis to substantiate its decision to charge Defendant with possession of a firearm in furtherance of a drug crime. See supra Section III(A). Moreover, the Government failed to comply with this Court's Order to produce evidence that could have been relevant to Defendant's Motion to Dismiss on the basis of prosecutorial vindictiveness. See supra Section I. In particular, despite this Court's Order instructing the Government to produce the transcripts from the grand jury proceedings underlying the first two indictments in this case, the Government did not produce the sections of the transcripts that contain the remarks of counsel before the grand juries. (Doc. # 108 at 2.) The Government's decision in this regard raises a strong inference that it concealed evidence that would show animus toward Defendant. Therefore, totality of the objective circumstances surrounding the Government's decision to add Count 3 to the SSI show that there is a substantial likelihood of vindictiveness. Thus, the burden shifts to the Government to demonstrate a legitimate basis for its decision. Wood, 36 F.3d at 946.
2. Government's Justifications
The only justifications that the Government offered in support of its charging decision are as follows:
We discovered new information in this case based upon the defendant's testimony that he picked up the codefendant and drove him around for approximately four hours. In addition, we received further evidence that the vehicle they were driving was obtained three days prior and was a rental. Hence, this evidence further shows that the defendant knew that the firearm was present for a drug related transaction, especially since it was found under the passenger's front seat of his rental vehicle and he picked up codefendant Posada who most assuredly put the firearm under his seat at some point after he entered this defendant's rental vehicle.(Doc. # 107 at 3.)
However, the proposition that the Government only became aware during Defendant's testimony that Defendant had been driving with codefendant Posada for approximately four hours is demonstrably false. The police investigation report made in this case indicates that Defendant stated after his arrest that he "picked up POSADA around noon from POSADA's apartment at 84th Ave and N Pecos St. and they drove to several locations which included residences, businesses, and bars." (Doc. # 108-1) (emphasis added). Additionally, Mr. Schoenike's Affidavit in Support of Criminal Complaint (Doc. # 1-1) reflects that Defendant and codefendant Posada arrived at the scene of the drug transaction "[a]t approximately 3:20 pm . . . ." Therefore, the Government's assertion that it discovered the same information for the first time during Defendant's testimony is a misrepresentation and cannot be credited as a legitimated basis for its decision to add Count 3 to the SSI.
Mr. Schoenike's statements under oath before the grand jury on May 9, 2019, that he learned from Defendant's testimony at the first trial that Defendant had been driving with codefendant Posada for approximately four hours was similarly a misrepresentation. (Doc. # 95-1 at 9.) --------
Thus, the only remaining explanation for adding a charge for possession of a firearm in furtherance of a drug crime is that Defendant was driving a rental car that was obtained three days prior to his arrest. (Doc. # 107 at 3.) However, viewing the evidence in the light most favorable to the Government, whether Defendant was driving a rental car that was obtained several days prior to his arrest or whether he was driving a car that he had owned for ten years is irrelevant to whether he knew that a passenger he picked up on the day of his arrest stowed a firearm under the passenger seat. Accordingly, the Government has not produced any legitimate explanation to support its charging decision. Therefore, the Government has not rebutted the presumption of vindictiveness that Defendant raised.
IV. CONCLUSION
Based on the foregoing reasons, the Court ORDERS that Defendant Resendiz' Motion to Dismiss Count Three of the Second Superseding Indictment (Doc. # 95) is GRANTED. Count Three of the Second Superseding Indictment (Doc. # 80) is hereby dismissed WITH PREJUDICE.
DATED: May 31, 2019
BY THE COURT:
/s/_________
CHRISTINE M. ARGUELLO
United States District Judge