The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
A grand jury returned a four count indictment against Veronica Lopez Vega, charging her with committing perjury while testifying as a defendant in a criminal trial in July 2003, in violation of 16 U.S.C. § 1623(a); falsely representing a number to be her Social Security number in connection with her employment in June 2002, in violation of 42 U.S.C. § 408(a)(7)(B); being found in the United States in July 2003 without obtaining permission for entry after having been deported, in violation of 8 U.S.C. § 1326(a) and 6 U.S.C. § 202(4); and using someone else's means of identification in September 2002 with intent to violate federal law, in violation of 18 U.S.C. § 1028(a)(7). The defendant*fn1 has moved to dismiss the indictment on the ground that it was obtained in violation of her right to due process of law. For the reasons stated below, the Court denies the defendant's motion.
The defendant was first indicted in 2002, under the name Maria Miranda, along with other defendants. United States v. Carrillo, et al., Case No. 02 CR 729. That indictment charged her with conspiring to possess heroin and cocaine with intent to distribute, importing heroin, possessing heroin with intent to distribute, and retaliating against an informant. The charges arose from a trip that the defendant made from Mexico to Chicago in a Cadillac automobile that was later found to contain drug paraphernalia and a missing drive shaft. At trial before Judge David Coar, an alleged co-conspirator who had been granted immunity testified that the defendant had been paid $10,000 to drive the car to Chicago with heroin and cocaine concealed in the drive shaft.
The defendant testified in her own defense in the Carrillo case and stated, among other things, that her name was Maria Miranda and that she was a United States citizen. She further testified that she had been invited by a co-defendant to attend a party and to receive a car as a gift and that she was unaware that there were narcotics in the car. At trial, the government tendered documents to the defense indicating that the defendant had previously used the name Veronica Lopez Vega. During her testimony, the defendant explained this by stating that once when she tried to enter the United States, she used the name Veronica Vega because she was a minor and was afraid that the father of her child, who was traveling with her, could get into trouble. She testified that she had never used the name Veronica Vega at any other time.
In July 2003, a jury convicted the defendant on the narcotics charges but acquitted her on the retaliation charge. At sentencing, held on March 19, 2004, Judge Coar found that the defendant had testified falsely in denying knowledge of the narcotics in the car and in denying certain conversations with co-conspirators, and he imposed a two-level enhancement for obstruction of justice under the Sentencing Guidelines. Judge Coar agreed with the defense, however, on several other contested Sentencing Guidelines issues, including the defendant's role in the offense, the amount of drugs for which she was accountable, and a proposed enhancement for restraint of a victim. Judge Coar imposed the mandatory minimum sentence, 120 months imprisonment, rather than the much higher sentence that the prosecutor sought. For reasons that are unclear but that presumably involved clerical delay, the judgment against the defendant in the previous case was not entered on the docket until June 17, 2004.
The defendant filed a notice of appeal on June 22, 2004. On July 12, 2004, the defendant filed a motion for new trial based on newly discovered evidence, pursuant to Federal Rule of Criminal Procedure 33(b). The allegedly newly discovered evidence consisted primarily of the report of a psychologist who examined the defendant in preparation for sentencing and concluded that she had cognitive limitations, information that the defendant argued could have impacted the jury's determination that she had acted knowingly. Judge Coar denied the motion on July 20, 2004, without prejudice to renewal after conclusion of the defendant's appeal. The Seventh Circuit heard oral argument on the defendant's appeal on June 10, 2005.
On November 15, 2005, while the parties were awaiting a decision on the appeal, Barry Miller, the prosecutor who had tried the defendant's case, contacted defense counsel Alison Siegler. Miller advised Siegler that the government was considering seeking charges against the defendant for perjury and identity theft but that it would forego doing so if the defendant would dismiss her appeal. On November 17, 2005, Siegler advised Miller by letter that the defendant would not dismiss her appeal and that if the government proceeded to seek additional charges, the defendant would challenge any new charges as being the product of vindictive prosecution. On November 21, 2005, David Glockner, the chief of the criminal division of this district's United States Attorney's Office, replied to Siegler letter with a letter of his own. Glockner stated that following the trial before Judge Coar, the government had received a complaint from someone named Maria Miranda who claimed that the defendant had stolen her identity and that additional investigation had led the government to believe that the defendant stole Miranda's identity, illegally re-entered the United States after deportation, and committed perjury when she testified that her name was Maria Miranda and that she was a United States citizen. Glockner stated that the government's proposal not to bring additional charges in exchange for an appellate waiver constituted normal plea bargaining and was not in any way improper, and he challenged Siegler's contention that further prosecution would be vindictive. Glockner repeated the earlier offer to decline the new charges in exchange for an appellate waiver. The defendant, however, did not withdraw her appeal.
On January 27, 2006, the Seventh Circuit affirmed the defendant's conviction. On March 8, 2006, the defendant renewed before Judge Coar her motion for a new trial. On May 23, 2006, over the government's objection, Judge Coar set the motion for an evidentiary hearing, initially setting the hearing date for September 14, 2006. On September 11, 2006, Judge Coar continued the hearing date to November 2, 2006.
On October 24, 2006, a grand jury returned the indictment in the present case. As indicated earlier, the indictment included four charges: perjury, false representation of a social security number, illegal re-entry following deportation, and use of another person's identification.
On October 27, 2006, Judge Coar again continued the hearing date on the defendant's motion for new trial in the first case. The hearing ultimately was held on April 18, 2007, and the parties filed post-hearing briefs on June 5, 2007. Judge Coar currently has the matter under advisement.
The defendant contends that the government obtained the present charges against her in retaliation for exercising her right to appeal the judgment in her first case. The Due Process Clause "prohibits initiating a prosecution based solely on vindictiveness" for the defendant's exercise of a legal or constitutional right. United States v. Segal, ___ F.3d ___, 2007 WL 2200507, at *4 (7th Cir. Aug. 2, 2007) (emphasis in original). "[F]or an agent of the [United States] to pursue a course of action whose objective is to penalize a person's reliance on his legal rights" is "a due process violation of the most basic sort . . . ." Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).
The defendant does not contend in her motion or supporting memoranda that she can establish that the prosecutor actually had a vindictive motive. Instead, she argues that given the circumstances, vindictiveness should be ...