United States District Court, S.D. Illinois
DAVID R. HERNDON, Chief District Judge.
This matter is before the Court on four pre-trial motions filed by defendant Bradford: (1) Motion to Dismiss (Doc. 57); (2) Motion for Witness List (Doc. 58);
(3) Motion to Sever Counts (Doc. 59); (4) Motion to Suppress Evidence (Doc. 60). The government has responded to each motion (Docs 74, 75, 76, and 79). After Bradford's motions were filed, the government filed a superseding indictment as to Bradford (Doc. 67). Accordingly, the government's responsive pleadings and this Order address Bradford's motions in light of the superseding indictment. As to the Motion to Suppress Evidence (Doc. 60), the Court finds that an evidentiary hearing is warranted. Accordingly, the Court will set this matter for an evidentiary hearing on July 9, 2015 at 9:00 am in East St. Louis before the undersigned Judge.
As for the remaining motions, the Court addresses each in turn below.
II. MOTION TO DISMISS (Doc. 57)
On March 4, 2014, the following three individuals were taken into custody for a 24 hour investigative hold: (1) defendant Bradford; (2) co-defendant Beard-Hawkins and (3) Danielle Smith. Law enforcement sought to interview Bradford, Beard-Hawkins, and Smith. Bradford declined to be interviewed and exercised his right to remain silent under the Fifth Amendment and his right not to be interviewed without the presence of legal counsel under the Sixth Amendment. Both Smith and Beard-Hawkins agreed to be interviewed without an attorney present and answered law enforcement's questions. Subsequently, Bradford and Beard-Hawkins, but not Smith, were indicted.
Bradford contends that following the interview process, he "became the focus of the efforts of ATF, " and he was ultimately charged with firearms offenses, yet Smith, who Bradford alleges faced many of the same firearm offenses, was not charged, and was utilized in the investigation of Bradford. Bradford asserts the government's prosecution of him, and not Smith, is selective and vindictive. As such, Bradford moves for dismissal of the indictment.
As a preliminary matter, the Court notes "the Supreme Court's decisions have recognized that government prosecutors have a wide discretion over whether, how, and when to bring a case." U.S. v. Jarrett, 447 F.3d 520, 525 (7th Cir. 2006). "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.'" U.S. 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 order to sustain a charge of selective prosecution, a defendant must show that (1) he was singled out for prosecution while other violators similarly situated were not prosecuted; and (2) the decision to prosecute him was based on an arbitrary classification such as race, religion, or the exercise of constitutional rights. U.S. v. Monsoor, 77 F.3d 1031, 1034 (7th Cir. 1996); Jarrett v. U.S., 822 F.2d 1438, 1443 (7th Cir. 1987).
A defendant challenging an indictment on selective prosecution grounds bears a heavy burden. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 489 (1999) ("[T]he standard for proving is particularly demanding, requiring a criminal defendant to introduce clear evidence' displacing the presumption that a prosecutor has acted lawfully."). The "mere coincidence" that a defendant is indicted subsequent to invoking a constitutional right is insufficient. Jarrett v. U.S., 822 F.2d 1438, 1443 (7th Cir. 1987). Such a coincidence, "standing alone, is not sufficient, absent some showing of improper prosecutorial purpose, to establish a prima facie case of selective prosecution." Id.
In order to show a vindictive prosecution, Bradford must show he was prosecuted to punish him for exercising a legally protected statutory or constitutional right. United States v. Goulding, 26 F.3d 656, 662 (7th Cir. 1994). More specifically, Bradford 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.'" U.S. v. Jarrett, 447 F.3d 520, 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)).
"To obtain a hearing on a claim of vindictive or selective prosecution, a defendant must offer sufficient evidence to raise a reasonable doubt that the government acted properly in seeking the indictment." U.S. v. Monsoor, 77 F.3d 1031, 1034 (7th Cir. 1996) (internal quotation omitted).
Here, there is simply no evidence, let alone "sufficient evidence to raise a reasonable doubt that the government acted properly in seeking the indictment." Accordingly, a hearing on Bradford's claims is not warranted. As to Bradford's selective prosecution claim, Bradford has failed to establish a prima facie case for selective prosecution. As in Jarrett, the exercise of a Constitutional right, standing alone, is insufficient to establish selective prosecution. As the government notes, Bradford's claim is belied by the fact that the co-defendant, Beard-Hawkins, did not exercise her Constitutional rights but was ...