United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Judge.
A two-count indictment charges Defendant Bernardino Ribota with violating the conditions of his pretrial bond on a separate 2002 criminal complaint. Defendant Ribota moves to dismiss the indictment on the basis of prosecutorial vindictiveness. (R. 12, Mot. to Dismiss.) For the following reasons, the Court denies Defendant Ribota's motion.
In 2002, the government charged Ribota with possessing a controlled substance with the intent to distribute, in violation of 21 U.S.C. 841, and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. 924(c). (RR. 1.) Following a detention hearing on December 11, 2002, the magistrate judge ordered Ribota detained pending the posting of a $50, 000 secured bond. (RR. 9, 19.) Ribota posted bond and the magistrate judge ordered him released on January 17, 2003, subject to the terms of a written release order that required him to report to Pretrial Services as directed and limited his travel to within the Northern District of Illinois. (RR. 19.) On January 30, 2003, the magistrate judge entered an order issuing a bench warrant for Ribota after he failed to appear for an office visit to Pretrial Services on January 29, 2003. (RR. 23.) On December 17, 2003, the grand jury returned a two-count indictment charging Ribota with violations of 21 U.S.C. §841(a)(1) and 18 U.S.C. §924(c). (RR. 34.)
On August 29, 2012, Defendant Ribota was arrested in Denver, CO, and on September 19, 2012 the Court arraigned Ribota on the 2003 indictment. (RR. 41, 45.) On February 25, 2013, Ribota filed a pro se motion to quash his arrest and suppress evidence. (RR. 54.) Defendant subsequently withdrew that motion. (RR. 55.) On April 30, 2013, the parties scheduled a change of plea hearing for May 29, 2013. (RR. 57.) On May 20, 2013, Ribota filed another motion to suppress evidence and requested that the Court strike the change of plea hearing. (RR. 58, 59.) The Court thereafter granted Defendant's motion to substitute counsel and granted his current counsel leave to file their appearances. (RR. 71.) On September 8, 2013, Defendant Ribota filed another motion to suppress evidence. (RR. 88.) On October 2, 2013, the government filed a response to the suppression motion agreeing that the seizure of the challenged evidence had not complied with the Fourth Amendment and that the challenged evidence was inadmissible. (RR. 91.) Given the government's concession, the Court granted Defendant's motion to suppress on October 2, 2013. (RR. 92.)
On October 3, 2013, the government charged Ribota in a two-count indictment with contempt of court in violation of 18 U.S.C. §401(3). (R. 1.) The indictment alleges that Defendant Ribota willfully disobeyed and resisted court orders in 02 CR 1165 by failing to restrict his travel to the Northern District of Illinois and by failing to report to Pretrial Services as directed. ( Id. ) On November 21, 2013, the Court granted the government's oral motion to dismiss Mr. Ribota's indictment in Case No. 02 CR 1165. (RR. 95.) On December 11, 2013, the Defendant filed the present motion to dismiss the indictment. (R. 12.)
"The Constitution prohibits initiating a prosecution based solely on vindictiveness." United States v. Segal, 495 F.3d 826, 832 (7th Cir. 2007) (emphasis in original). "For an agent of the United States to penalize a person's reliance on his legal rights' is a due process violation of the most basic sort.'" Id. (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)). "A claim of vindictive prosecution is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.'" United States v. Jarrett, 447 F.3d 520, 525 (7th Cir. 2006) (quoting United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996)).
Of course, "the Supreme Court's decisions have recognized that government prosecutors have a wide discretion over whether, how, and when to bring a case." Jarrett, 447 F.3d at 525. "In the ordinary case, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.'" United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (quoting Bordenkircher, 434 U.S. at 364.). In assessing a claim of vindictive prosecution, "courts must begin from a presumption that the government has properly exercised its constitutional responsibilities to enforce the nation's laws." Jarrett, 447 F.3d at 525 (citing Armstrong, 517 U.S. at 464. "This presumption of regularity' in prosecutorial decision making can only be overcome by clear evidence to the contrary.'" Id. (quoting Armstrong, 517 U.S. at 463-64.)
"In order to succeed on a claim of prosecutorial vindictiveness, a defendant must affirmatively show through objective evidence that the prosecutorial conduct at issue was motivated by some form of prosecutorial animus, such as a personal stake in the outcome of the case or an attempt to seek self-vindication." Jarrett, 447 F.3d at 525 (7th Cir. 2006) (quoting United States v. Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003)). Only after a defendant presents "objective evidence of actual vindictiveness does the burden shift to the government to show that the motivation behind the charges was proper." Id. (citing United States v. Bullis, 77 F.3d 1553, 1559 (7th Cir. 1996)). In limited circumstances, the Court can presume prosecutorial vindictiveness, but this applies "only in cases in which a reasonable likelihood of vindictiveness exists." United States v. Goodwin, 457 U.S. 368, 373 (1982).
Defendant Ribota contends that the government's decision to pursue the charges in the current indictment immediately following the ruling on his motion to suppress "was a direct result of Mr. Ribota's successful assertion of his Fourth Amendment rights." (Motion at 2.) Ribota explains that the "government lost something they did not want to lose and retaliated by filing charges they would not otherwise have filed against the defendant." ( Id. at 8.) Ribota also asserts that the timing of the government's decision to file the current indictment creates a presumption of vindictiveness. ( Id. at 7.) In support, Ribota argues that following his 2012 arrest, the government did not initiate any charges for his 2003 flight until the day the Court granted his motion to suppress. ( Id. )
I. Actual Vindictiveness
Ribota's only assertion of objective evidence of prosecutorial animus is that the government did not "choose to pursue contempt charges against Mr. Ribota until the day [the Court granted] his motion to suppress." (R. 12 at 2.) This argument fails. First, the conduct charged in the current indictment differs from the conduct charged in the 2002 complaint. (RR. 1.) The Seventh Circuit has held that the government's filing of additional charges based upon separate conduct from the original charge does not create a presumption of vindictiveness, let alone establish objective evidence of actual vindictiveness. Williams v. Bartow, 481 F.3d 492, 502 (7th Cir. 2007) ("Therefore, when the prosecutorial conduct involves other criminal conduct, the defendant must demonstrate actual vindictiveness rather than relying on the presumption recognized in Blackledge and Thigpen. "). Second, the prosecutor who sought the current indictment for Mr. Ribota's flight was not involved in the decision to file the 2002 complaint and did not file his attorney designation in Mr. Ribota's case until September 18, 2012. (RR. 42.) Third, the current prosecutor agreed with Defendant's motion to suppress and stated "the evidence obtained by government agents on December 4, 2002, after they proceeded to the rear of the property at 4116 S. Campbell was obtained in violation of the Fourth Amendment and is inadmissible." (RR. 91.) Thus, there is no indication that the prosecutor has a "personal stake" in Defendant's conviction or is attempting to "seek self-vindication" for a successful challenge ...