United States v. Gilbert

• Decision Date: 25 October 2011
• Docket Number: Case Number 11-CR-20490-01
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. CHAD GILBERT, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

UNITED STATES OF AMERICA, Plaintiff, v. CHAD GILBERT, Defendant.

Case Number 11-CR-20490-01

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

Dated: October 25, 2011

Honorable Thomas L. Ludington

OPINION AND ORDER DENYING DEFENDANT

CHAD GILBERT'S MOTION TO DISMISS THE INDICTMENT

This criminal case arises out of a couple's alleged sale of cattle that the government had a security interest in, without the government's consent and without reimbursing the government. The instant motion presents two principal issues. First, did the magistrate judge have the jurisdictional authority to dismiss a misdemeanor charge, as the parties had consented to proceed before the magistrate judge? And, if so, does that dismissal preclude this subsequent felony indictment charging separate criminal offenses arising out of the same alleged wrongdoing? For the following reasons, the Court concludes that the magistrate judge did have the authority to dismiss the misdemeanor charge, but that dismissal does not preclude this subsequent felony indictment. Accordingly, the motion to dismiss the indictment will be denied.

I.

In 2005, the U.S. Department of Agriculture loaned Defendants Chad and Theresa Gilbert about $39,000. As collateral for the loan, Defendants pledged all their livestock, including cattle. Afterwards Defendants sold some of the cattle to third parties without thegovernment's consent, the government alleges, and did not use the sale proceeds to pay their indebtedness.

In August 2008, the government filed an information charging Defendants with a single misdemeanor violation of 18 U.S.C. § 641.¹ See Information, United States v. Gilbert, No. 10-cr-20505 (E.D. Mich. filed Aug. 18, 2008), ECF No. 1. In pertinent part, it alleged that Defendants had "embezzled and converted . . . things of value of the United States" when they "sold the collateral . . . and used the proceeds of the sale for purposes other than to pay their indebtedness." Id. at 1. Both Defendants consented to proceed before Magistrate Judge Binder. In September 2010, a Rule 11 plea agreement was submitted. On February 14, 2011, Judge Binder vacated the pleas. United States v. Gilbert, No. 10-cr-20505, 2011 WL 652830, at *4-5 (E.D. Mich. Feb. 14, 2011). Finding the guilty pleas did not have the necessary the factual basis for entry because the government's security interest did not equate to an ownership interest, the order explained that "the conduct to which both Defendants admitted during their plea hearings does not constitute a violation of 18 U.S.C. § 641 because the property sold was owned by Defendants, and not by the government, as required under the first element of section 641." Id. at 5.

Three days after the pleas were vacated, the government sent a letter to Defendants, providing three options on how Defendants might choose to proceed: "(1) withdraw your consent to magistrate jurisdiction, and ask Judge Ludington to re-instate the guilty pleas and enforce the plea agreements, (2) seek reconsideration of the magistrate judge's order because you wish tohave the benefit of the pre-indictment misdemeanor plea agreement, or (3) await a grand jury indictment. As it is said, the ball is now in your court." Def.'s Br. Supp. Mot. to Dismiss Ex. 1 ("Def.'s Br.").

Several months passed. Defendants did not act in response to the government's suggestion. The government did not take action either. On July 28, 2011, Judge Binder, recognizing no action had been taken in the case for more than seventy days, sua sponte entered an order dismissing the case with prejudice. See United States v. Gilbert, 10-20505, slip op. 4-5 (E.D. Mich. July 28, 2011). The order explained: "The Order Vacating Pleas was entered on February 14, 2011. Accordingly, Defendants should have been brought to trial within seventy days of that date, or April 25, 2011. Therefore, the failure to bring Defendants to trial by that date has violated the Speedy Trial Act and the cases must be dismissed." Id. at 4 (internal citation omitted).

Less than a week after the cases were dismissed, the government filed a seventeen-count felony indictment against Defendants, alleging violations of 15 U.S.C. § 714m(c) & (d) and 18 U.S.C. § 1001.² See Indictment, United States v. Gilbert, 11-cr-20490 (E.D. Mich. filed Aug. 3, 2011), ECF No. 1. Although charging different offenses, the indictment is based on the same alleged wrongdoing — that Defendants "embezzled and converted . . . things of value of the United States" when they "sold the collateral . . . and used the proceeds of the sale for purposes other than to pay their indebtedness." Id. at 1.

Defendant Chad Gilbert now moves to dismiss the indictment. ECF No. 12. "For whatever reason," Defendant writes, "the government chose not to appeal Magistrate Binder's Order dismissing with prejudice," and "[t]he law of the case doctrine bars challenges to the decision made at a previous stage of the litigation which could have been appealed." Def.'s Br. 5 (citing United States v. Adesida, 129 F.3d 846, 850 (6th Cir. 1997)). Moreover, Defendant contends that the indictment must be dismissed pursuant to 18 U.S.C. § 3161(d)(1),³ writing: "a reading of [§] 3161 makes clear that once any complaint against an individual is dismissed or otherwise dropped, and thereafter a complaint is filed against such defendant . . . based on the same conduct . . . the provisions of [§] 3161(d)(1) do apply to such subsequent complaint." Def.'s Br. 6. Finally, Defendant argues, "the government has denied Defendant . . . due process of law . . . by acting with vindictiveness in recharging him a year later after originally charging him with a single misdemeanor count with a 17 count felony indictment." Id. at 7 (capitalization omitted).

The government responds that the order sua sponte dismissing the case with prejudice is void because it exceeds the established jurisdictional limitations of magistrate judges, as provided in 28 U.S.C. § 636(b)(1)(A). Additionally, the government argues, even if the order was within the magistrate's jurisdiction, "[s]uch an order would not preclude the current prosecution on other charges, though those charges arise out of the same course of criminal conduct." Gov't's Br. Opp'n Mot. to Dismiss 5 (citing United States v. Nabors, 901 F.2d 1351, 1355 (6th Cir. 1990)) ("Gov't's Br."). Turning to Defendant's vindictiveness argument, thegovernment concludes: "The indictment against [Defendant] is a result of his decision, not prosecutorial vindictiveness." Id. at 8.

II.

The jurisdiction of federal magistrate judges is established, and circumscribed, by 18 U.S.C. § 636. Subsection (b) limits the authority of magistrate judges to issue dispositive orders (absent party consent), providing in pertinent part:

Notwithstanding any provision of law to the contrary—

(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. . . .

28 U.S.C. § 636(b)(1)(A). Subsection (c), however, provides that if the parties consent, the magistrate judge may exercise plenary jurisdiction over the case. See § 636(c)(1); see generally Black's Law Dictionary 870 (8th ed. 2004) (defining "plenary jurisdiction" as "[a] court's full and absolute power over the subject matter and the parties in a case"). It provides in pertinent part:

Notwithstanding any provision of law to the contrary—

(1) Upon the consent of the parties, a full-time United States magistrate judge or a part-time United States magistrate judge who serves as a full-time judicial officer may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case . . . .

§ 636(c)(1).⁴ The Sixth Circuit explains that "in cases where parties consent to a magistrate judge's exercise of plenary jurisdiction . . . the magistrate judge issue effective rulings on allmatters, including dispositive motions." Vogel v. U.S. Office Prods. Co., 258 F.3d 509, 515 (6th Cir. 2001) (citing 28 U.S.C. § 636(b)(1)(B)); see also Vitols v. Citizens Banking Co., 984 F.2d 168, 169 (6th Cir. 1993) ("If the parties consent to a reference under § 636(c)(1) and the district court so designates, a magistrate judge may exercise plenary jurisdiction.").

In this case, the parties consented to Judge Binder's exercise of plenary jurisdiction, executing a form document entitled "Consent to Proceed Before a Magistrate Judge in a Misdemeanor Case." See Consent to Proceed before Magistrate Judge, United States v. Gilbert, No. 10-cr-20505 (E.D. Mich. filed Sept. 2, 2010), ECF No. 2. In pertinent part, it states: "I consent to being tried before a United States magistrate judge, and I waive my rights to trial, judgment, and sentencing by a United States district judge." Id.⁵ Accordingly, the government's reliance on subsection (b) of § 636 is misplaced — Judge Binder's jurisdiction over the case arose from subsection (c).

Plenary jurisdiction includes the authority to dismiss charges sua sponte. See United States v, Mancias, 350 F.3d 800, 810 (8th Cir. 2003) (noting that "the Speedy Trial Act requires an automatic dismissal of the charges for failing to bring a defendant to trial within its seventy-day limit"); United States v. Lowery, 21 F. Supp. 2d 648, 649 (E.D. Tex. 1998) (mem.) ("Due to an unintentional mix-up, the 'Speedy Trial Act,' 18 U.S.C. § 3161, has been violated . . . . Sua sponte, the court is required to dismiss the indictment.").

Thus, although government may be correct that "[i]t would be irrational to assert that a magistrate judge that lacked the jurisdiction to grant a ...