United States v. Brown

• Decision Date: 29 May 2012
• Docket Number: Case No. 1:10–CR–360–VEH–JEO.
• Parties: UNITED STATES of America, Plaintiff, v. Jeremy BROWN, Defendant.
• Court: U.S. District Court — Northern District of Alabama

862 F.Supp.2d 1276

UNITED STATES of America, Plaintiff,

v.Jeremy BROWN, Defendant.

Case No. 1:10–CR–360–VEH–JEO.

United States District Court,

N.D. Alabama,

Eastern Division.

May 29, 2012.

Joyce White Vance, U.S. Attorney, William Gott Simpson, U.S. Attorney's Office, U.S. Probation, United States Probation Office, USM, United States Marshal, Birmingham, AL, for Plaintiff.

J. Derek Drennan, Jaffe Strickland Drennan & Dodd PC, Birmingham, AL, for Defendant.

MEMORANDUM OF OPINION AND ORDER

VIRGINIA EMERSON HOPKINS, District Judge.

I. Introduction

This matter is before the court on various Motions To Dismiss ( see docs. 17, 25, 27, & 28) (the “Motions”) filed by Defendant, Jeremy Brown (“Brown”; “Defendant”). Brown seeks to dismiss his indictment for assaulting a correctional officer on the grounds that the indictment is the result of selective and/or vindictive prosecution.

On January 26, 2012, the parties filed a Stipulation of [Agreed] Facts (doc. 43) and Magistrate Judge John E. Ott held an evidentiary hearing on the Motions. On March 6, 2012, Judge Ott entered a Report and Recommendation (“R & R”) (doc. 46) recommending that the Motions be denied. On March 20, 2012, Brown was granted an extension of time to file objections to the R & R. Brown filed his Objections on April 6, 2012. (Doc. 48). The Government filed no objections to the R & R, nor has the Government responded to the Defendant's Objections, and the Government's time to do so has expired. ( See margin order entered 2/16/2012, setting deadlines.) Defendant's Objections are now before the Court.

The court has reviewed the pleadings, the transcript of the hearing and all exhibits to such transcript, the parties' Stipulation, the R & R, and the Objections, and sets out its findings of fact and conclusions of law below. Based on those findings of fact and conclusions of law, the Motions are due to be, and hereby are, DENIED.

II. Standard of Review

Under the Federal Magistrates Act, Congress vested Article III judges with the power to authorize a magistrate judge to conduct evidentiary hearings. The relevant portion of the Act is found at 28 U.S.C. § 636. A district court judge may designate a magistrate judge to conduct hearings, including evidentiary hearings, in order to submit proposed findings of fact and recommendations for the disposition of motions. This district has generally referred certain criminal proceedings, including motions to suppress, to its magistrate judges.

Within fourteen days after being served with a copy of the report and recommendation, any party may file written objections to the proposed findings and recommendations. See28 U.S.C. § 636. After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. See28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir.1982). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). This requires that the district judge “give fresh consideration to those issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir.1990) (citation omitted). A district judge must review legal conclusions de novo, even in the absence of an objection. See Cooper–Houston v. Southern Ry., 37 F.3d 603, 604 (11th Cir.1994); Castro Bobadilla v. Reno, 826 F.Supp. 1428, 1431–32 (S.D.Fla.1993), aff'd28 F.3d 116 (11th Cir.1994). That said, the court also acknowledges the principle that “[n]either the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.” United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir.2004) (citation omitted). Moreover, absent specific objections, there is no requirement that a district judge review factual findings de novo. See Garvey v. Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir.1993) (noting that when a party “did not file specific objections to factual findings by the magistrate judge, there was no requirement that the district court de novo review those findings”) (emphasis in original) (citations omitted).

III. AnalysisA. Factual and Procedural Background before Magistrate Judge¹

Brown is charged with assaulting a correctional officer “by striking him with a substance purported to contain feces and urine” in the face on March 25, 2010. (Doc. 1). The incident allegedly occurred while the Defendant was housed in the Special Management Unit (“SMU”) at the Federal Correctional Institution in Talladega, Alabama. He was indicted in this action on September 30, 2010. ( Id.)

The Defendant initially filed a motion to dismiss the indictment premised on allegations of selective prosecution. Specifically, he alleges that he has been selected for prosecution while similarly situated inmates have not been. He further asserts that he is being prosecuted because of his prolific legal writings and court filings. (Doc. 17 at 3 of 6). Therein, he also requested written discovery from the prosecution. ( Id. at 5 of 6). The United States filed a “Response,” including various records and an affidavit of FBI Special Agent Preston Leingang. (Doc. 20). The court ordered the United States to disclose any incident reports concerning assaults against correctional officers involving bodily fluids in or about the area of the face. (Doc. 22 at 5). The United States produced 41 incident reports in compliance with the court's order. (See Doc. 25 at 1).

Brown next filed an amended motion to dismiss in support of his claim of selective prosecution and, among other things, alleged a new claim of vindictive prosecution. (Doc. 25 at 3 & n. 5). Therein, he also requested additional discovery on his claims. ( Id. at 4–5 of 6). Further, he requested an evidentiary hearing. ( Id.) The United States filed a “Response” to the amended motion, asserting that Brown's claims are without merit. (Doc. 26). Subsequently, Brown filed a motion in support of his claims, alleging that all the necessary discovery had not been disclosed by the United States. (Doc. 27). Next, he filed a “Second Motion in Support of Amended Motion to Dismiss as Relief Against Selective and Vindictive Prosecution.” (Doc. 28). The United States filed a response to the Defendant's “Second Motion” and his request for discovery. (Doc. 29). The court ordered the parties to submit additional evidence in support of and in opposition to the request for discovery. (Doc. 30 at 7). The United States filed a “Reply” to Brown's claim of vindictive prosecution. (Doc. 35). After the evidence and all arguments were submitted, the court ordered the United States to produce the following:

1. Any BOP records from March 2009 through September 2010[ ] reflecting assaults on BOP officers and personnel in the SMU involving a weapon (e.g., a knife, shank, a broom or stick, a razor) and serious injury;

2. Any BOP records showing the referral of incidents described in “1” above to the FBI or United States Attorney for prosecution; and,

3. Any BOP records showing the results of any referrals described in “2” above (e.g., declination letters, judgments or convictions).

(Doc. 36 at 12 of 13 (bold in original and footnote omitted)).

Brown's motions to dismiss the indictment were set for an evidentiary hearing. (Doc. 36 at 13 of 13 & Docket Entry dated January 20, 2012). The evidentiary hearing was conducted on the motions to dismiss on January 26, 2012, at FCI Talladega. The parties submitted the matter on the evidence from the hearing and the prior submissions and arguments.²

B. R & R Findings of Fact

The only “fact” found by Judge Ott to which any party has objected is Judge Ott's finding “that the disparate treatment was not improperly motivated.” (Objections,Doc. 48. p. 1).³ Neither party has objected to the legal standards set out in the R & R. Rather, the Defendant has objected to Judge Ott's finding that the disparate treatment was not improperly motivated and his resulting conclusion that the indictment was not due to be dismissed. The court will therefore adopt the facts as set out in the R & R. For the reader's convenience, those facts are set out below.

1. Background

The evidence demonstrates that Brown was moved to the SMU at FCI Talladega in about March 2009. (Def. Ex. 7).⁴ During his transportation from USP McCreary, Pine Knot, Kentuc[k]y to Talladega, Alabama, he was assaulted by David Sneed,⁵ a corrections officer at USP McCreary. Sneed recently pled guilty in the United States District Court for the Eastern District of Tennessee to striking Brown while he “was secured in restraints, including handcuffs, leg irons, and a Martin or ‘belly’ chain.” (Def. Ex. 5 at 2–3). Brown filed a civil suit pursuant to Bivens,⁶ concerning the assault on November 9, 2009. (Def. Ex. 7). Many of the staff at the SMU in Talladega were aware of Brown's suit and the allegations.

The evidence also shows that inmate assaults on correctional officers in the SMU is a serious issue, and has been for a while. The present indictment alleges that Brown participated in such an incident on March 25, 2010. (Doc. 1).

FBI Special Agent Preston Leingang was contacted by prison officials on March 26, 2010, to conduct a criminal investigation into the matter. (Def. Ex. 9). On March 30, 2010, Brown was interviewed by Agent Leingang. According to Brown, in that interview he was told by Leingang that unless he stopped filing prison grievances, he would face more prison time.⁷ (Doc. 17 at 3; Doc. 17–3).⁸ On May 11, 2010, and July 15, 2010, Leingang was provided with copies of the BOP investigative file and CD–ROMs containing relevant evidence, respectively, in this matter. (Def. Ex. 10 & 11).

2. Jeremy Pinson

Brown offered evidence from Jeremy Pinson, a former SMU inmate, prior to the...