United States v. Brattin

• Decision Date: 30 November 2016
• Docket Number: Case No. 2:15-cr-00037-JAD-GWF
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. MARC BRATTIN, Defendant.
• Court: U.S. District Court — District of Nevada

UNITED STATES OF AMERICA, Plaintiff, v. MARC BRATTIN, Defendant.

Case No. 2:15-cr-00037-JAD-GWF

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

November 30, 2016

ORDER

This matter is before the Court on Defendant's Motion for Attorney's Fees and Litigation Expenses Pursuant to the Hyde Amendment (ECF No. 62), filed on September 7, 2016. The Government filed its Response in Opposition (ECF No. 65) on September 26, 2016. Defendant filed his Reply in support of his Motion (ECF No. 66) on September 30, 2016. The Court conducted a hearing in this matter on October 7, 2016.

BACKGROUND

Defendant Marc Brattin was previously charged in a May 1, 2013 indictment with two counts of bank fraud in violation of 18 U.S.C. § 1344 and two counts of wire fraud in violation of 18 U.S.C. § 1343. United States v. Brattin, Case No. 2:13-cr-00161-JAD-CWH, Indictment (ECF No. 1). The indictment alleged that from in or about 2009 to in or about March 2013, Defendant devised a scheme and artifice to defraud purchasers and banks. Id. at pg. 2, ¶ 4. On February 2, 2015, Defendant Brattin pled guilty to all four counts of the indictment without a plea agreement. See Minutes of Proceedings (ECF No. 54), Case No. 2:13-cr-00161-JAD-CWH. On May 6, 2015, Defendant was sentenced to serve a term of imprisonment and was ordered to pay restitution. Judgment of Conviction (ECF No. 71), Case No. 2:13-cr-00161-JAD-CWH. In this case, Defendant was also charged in a February 4, 2015 indictment with one count of wire fraud in violation of 18 U.S.C. § 1343 and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) and (c)(5) (Count Two). Indictment (ECF No. 1). The charges arise out of the same fraudulent scheme charged in Case No. 2:13-cr-00161-JAD-CWH. Id. at pg. 2, ¶ 4.

The parties engaged in failed plea negotiations that resulted in Defendant's guilty plea in Case No. 2:13-cr-00161-JAD-CWH and his subsequent indictment in this case. See Defendant's Motion to Dismiss, (ECF No. 27), Exhibits B-M, O-T. On November 6, 2014, Assistant United States Attorney Sarah Griswold sent an email to Defendant's counsel, Louis Palazzo, in which she noted that counsel had previously discussed a resolution of the charges in Case No. 2:13-cr-00161-JAD-CWH. In this email, Ms. Griswold informed Defendant's counsel that if the parties were unable to reach a plea agreement, then the Government was prepared to charge Defendant with an additional count of identity theft. Defendant's Motion to Dismiss, (ECF No. 27), Exhibit B. Defendant's counsel signed a waiver of the statute of limitations to allow the parties to continue to negotiate. Id. at Exhibit C.

On November 10, 2014, the Government offered to resolve the case if Defendant agreed to a Sentencing Guidelines level, in which the parties could either jointly recommend a low-end guideline sentence, or Defendant could argue Section 3553 (18 U.S.C. § 3553) factors, providing full restitution to victims, and admitting all forfeiture allegations. In exchange, the Government would not bring the aggravated identity theft charge. Because Defendant needed more time to review discovery before making a decision, the Government agreed to keep the offer open until December 19, 2014, provided that Defendant executed another waiver of the statute of limitations through February 10, 2015. Government's Response, (ECF No. 31), Exhibit 9.

On December 18, 2015, Ms. Griswold sent an email to Mr. Palazzo asking what his client's decision was regarding the plea offer. Mr. Palazzo responded that although his client planned to enter a plea, there was an issue regarding the restitution amount. Id. at Exhibit 13. Mr. Palazzo and Ms. Griswold thereupon engaged in an exchange of emails about resolving the restitution amount, and Mr. Palazzo requested that Ms. Griswold forward a proposed plea agreement. Government's Response, (ECF No. 31), Exhibits 15-17. On December 19, 2014, Ms. Griswold emailed a proposed plea agreement to Mr. Palazzo. Id. at 18, Section IX, pg. 11. On January 12, 2015 Ms.Griswold advised Mr. Palazzo that the Government would consider the offer rejected if the signed plea agreement was not received that day. Id. at Exhibit 22. In response, Mr. Palazzo indicated that he was in possession of the signed plea agreement, but the parties still could not reach an agreement that included loss and restitution amounts.

On January 13, 14, and 15, 2015, Ms. Griswold and Mr. Palazzo engaged in further exchanges regarding the amount of loss and restitution. Id. at Exhibits 27-31. On January 30, 2015, Ms. Griswold set forth the Government's review of the loss and restitution issue and provided a new proposed plea agreement. Id. at Exhibit 41. The proposed plea agreement provided that the parties would jointly recommend a low-end Guidelines sentence, but did not allow Mr. Brattin to seek a below-Guidelines sentence. Mr. Palazzo responded that Defendant could not agree that he would not seek a below Guidelines sentence. Id. at Exhibit 42. Nonetheless, after communicating with Ms. Griswold, Mr. Palazzo stated that he would review the proposed plea agreement. Id. at Exhibit 46. On February 2, 2015, Ms. Griswold sent an email to Mr. Palazzo asking him to let her know what his client intended to do. Id. at Exhibit 47. On the same day, Mr. Palazzo stated via voice mail message that the proposed plea agreement was not consistent with their previous agreement because it prohibited Defendant from arguing the Section 3553 factors. Id. at Exhibits 48A, 48B.

On February 2, 2015, Defendant pled guilty without the benefit of a plea agreement in Case No. 2:13-cr-00161-JAD-CWH . ECF No. 54. See also Transcript of Proceedings (ECF No. 57). Approximately one hour after the hearing, Ms. Griswold sent an email to Mr. Palazzo stating that the statute of limitations on the aggravated identity theft count would run on February 10, 2015 and that without an agreement to toll the statute of limitations, the Government would go to the grand jury. Ms. Griswold attached a tolling agreement and the parties discussed the proposed tolling agreement and the parties' respective positions.

On February 3, 2015, Ms. Griswold emailed a proposed post-plea agreement to Mr. Palazzo. Defendant's Exhibit Q. The proposed post-plea agreement provided for Defendant to waive the statute of limitations for aggravated identity theft and wire fraud and to waive his appeal and post-conviction proceedings with respect to the charges he pled guilty to on February 2, 2015. Defendant's Exhibit R. On February 4, 2015, the government went to the grand jury and the grandjury returned an indictment charging him with wire fraud and aggravated identity theft. On February 4, 2015 at 5:06 P.M., Mr. Palazzo sent an email to Ms. Griswold regarding the proposed post-plea agreement with suggested clarifying language. That same day, Ms. Griswold responded that the issues were moot because the Government went to the grand jury and the grand jury returned the indictment. Defendant's Exhibit T. No further negotiations occurred between the parties after Ms. Griswold's February 4th email.

During Defendant Brattin's sentencing hearing in Case No. 2:13-cr-161-JAD-CWH on May 6, 2015, the Court determined the Sentencing Guidelines level. Transcript of Proceedings (#77), pg. 37:14-17. On May 13, 2015, Defendant's appellate counsel filed a notice of appeal in Case No. 2:13-cr-00161-JAD-CWH. Notice of Appeal (#73). The appeal was fully briefed in or about November of 2015 and the Ninth Circuit Court of Appeals granted Defendant's motion to expedite the appeal. Order (ECF No. 102). During the December 10, 2015 hearing in this case, Mr. Palazzo stated that if charges in this indictment are dismissed, Defendant Brattin would dismiss his appeal in Case No. 2:13-cr-00161-JAD-CWH. See ECF No. 50, pg. 12. On September 17, 2015, Defendant filed his Motion to Dismiss for Vindictive Prosecution, Prosecutorial Misconduct, and Double Jeopardy Violation (ECF No. 27)in this case. On January 27, 2016, the Court issued Findings and Recommendations that Defendant's Motion to Dismiss be denied.

The Court's Findings and Recommendations stated as follows:

Based on the foregoing, the undersigned magistrate judge is very tempted to recommend dismissal of the indictment if the Government is unwilling to voluntarily dismiss it subject to Defendant dismissing his appeal in Case No. 2:13-cr-00161-JAD-CWH. The Due Process Clause of the Fifth Amendment does not, however, give the court the general discretion to dismiss an indictment on grounds of reasonableness and fairness. Rather involuntary dismissal is justified only if the court can properly find that the additional charges filed against Defendant (1) are the result of vindictiveness by the prosecutor, (2) are outrageous and shock the judicial conscience, or (3) fall within the court's supervisory powers to dismiss an indictment in order to preserve the integrity of the judicial process.

The Court cannot find that Ms. Griswold or the United States Attorney's Office sought to punish Defendant Brattin for exercising a constitutional or statutory right. The Court finds on this record, that the additional charges were filed because the (1) parties did not reach a plea agreement prior to Defendant entering his guilty plea on February 2, 2015 and (2) because Defendant did not agree to the post-plea agreement within the Government's deadline, although that deadline was not adequately communicated to Defendant's counsel. This record also does not support a finding of outrageous government in violation of the Due Process Clause under thehigh standard required for such a finding. Nor does dismissal appear justified under the Court's supervisory power which requires a finding that the Government violated Defendant's constitutional or statutory rights. Defendant has not identified any constitutional or statutory right that was violated by the Government.

Findings and Recommendation, (ECF...