United States v. Gilbert
| Decision Date | 22 November 2011 |
| Docket Number | Case Number 11-CR-20490-02 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. THERESA GILBERT, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable Thomas L. Ludington
This criminal case arises out of a couple's alleged sale of cattle that the government had obtained a security interest in, without the government's consent and without reimbursing the government. The instant motion presents three 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? Second, assuming the magistrate did have jurisdiction, does that dismissal preclude the government's subsequent felony indictment charging separate criminal offenses arising out of the same alleged wrongdoing? And third, did the government act vindictively by responding to the dismissal of the single misdemeanor by charging seventeen felonies?
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, and that the prosecutor did not act vindictively. Accordingly, Defendant Theresa Gilberts' motion to dismiss the indictment will be denied.
In 2005, the U.S. Department of Agriculture loaned Defendants Chad and Theresa Gilbert about $39,000. As collateral for the loan, Defendants granted the United States Department of Agriculture a security interest in their livestock, including cattle. Defendants later sold some of the cattle subject to the security interest to third parties without the government'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. 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 to Judge Binder. On February 14, 2011, Judge Binder vacated the guilty pleas. United States v. Gilbert, No. 10-cr-20505, 2011 WL 652830, at *4-5 (E.D. Mich. Feb. 14, 2011). Finding the 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 guilty pleas were vacated, the government sent a letter to Defendants, providing three options on how Defendants might choose to proceed: Def.'s Mot. to Dismiss Ex. 1 ("Def.'s Mot.").
Several months passed. Defendants did not act in response to the government's suggestion. The government did not act either. On July 28, 2011, Judge Binder recognized that no action had been taken in the case for more than seventy days and 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: 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. 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 then moved to dismiss the indictment on two grounds, law of the case and prosecutorial vindictiveness. ECF No. 12. By opinion and order of October 25, 2011, the Court denied the motion. ECF No. 18. Defendant Theresa Gilbert now moves to dismiss theindictment on the same two grounds. ECF No. 17. For the following reasons, her motion will be denied.
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:
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:
§ 636(c)(1).1 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) ().
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.2 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) (); United States v. Lowery, 21 F. Supp. 2d 648, 649 (E.D. Tex. 1998) (mem.) ( ).
Thus, the government may be correct that "[i]t would be irrational to assert that a magistrate judge that lacked the jurisdiction to grant a motion to dismiss could nevertheless sua sponte order the dismissal of an action." Pl.'s Opp'n Mot. Dismiss 3, ECF No. 20. As the government's premise is unfounded in this case, however, its conclusion is unpersuasive. Judge Binder had jurisdiction to dismiss the information sua sponte.
"Generally, the law-of-the-case doctrine bars challenges to a decision made at a previous stage of the litigation which could have been challenged in a prior appeal, but were not." United States v. Gibbs, 626 F.3d 344, 351 (6th Cir. 2010) (internal quotation marks omitted) (quoting United States v. Adesida, 129 F.3d 846, 850 (6th Cir. 1997)). That is, "[a] party who could have sought review of an issue or a ruling during a prior appeal is deemed to have waived the right to challenge that decision thereafter." Adesida, 129 F.3d at 850.
In the prior case, two orders were entered but not appealed. Neither, however, bars the present case. First, an order was entered providing that the offense charged in the August 2008 information, a single misdemeanor violation of 18 U.S.C. § 641, "does not apply in a factual setting such as this case." United States v. Gilbert...
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