United States v. Rosse, No. 2:14–cr–20011–JTF–cgc.

CourtUnited States District Courts. 6th Circuit. Western District of Tennessee
Writing for the CourtJOHN T. FOWLKES, JR., District Judge.
Citation34 F.Supp.3d 862
PartiesUNITED STATES of America, Plaintiff, v. Samuel ROSSE, III, Defendant.
Docket NumberNo. 2:14–cr–20011–JTF–cgc.
Decision Date29 July 2014

34 F.Supp.3d 862

UNITED STATES of America, Plaintiff
Samuel ROSSE, III, Defendant.

No. 2:14–cr–20011–JTF–cgc.

United States District Court, W.D. Tennessee, Western Division.

Signed July 29, 2014.

34 F.Supp.3d 865

Jerry R. Kitchen, U.S. Attorney, Jackson, TN, for Plaintiff.


JOHN T. FOWLKES, JR., District Judge.

Before the Court is Defendant Samuel Rosse's Second Motion to Dismiss filed on April 11, 2014. (Def.'s Motion, ECF No. 46). On April 28, 2014, the Court referred the motion to the United States Magistrate Judge for Report and Recommendation pursuant to 28 U.S.C. § 636(b). (Order

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of Reference, ECF No. 55). On May 28, 2014, the Magistrate Judge conducted an evidentiary hearing on the Motion. After hearing arguments from the parties, the Magistrate Judge ordered the Defendant to file a supplemental brief and allowed time for the Government's response. (Minutes, ECF Nos. 70). On May 30, 2014, Defendant filed a Bench Brief and the Government responded on June 6, 2014. (Def.'s Bench Brief, ECF No. 71; Govt.'s Resp., ECF No. 73). On June 25, 2014, the Magistrate Judge issued her report and recommendation that Defendant's Second Motion to Dismiss be denied. (Report and Recommendation, ECF No. 78). Defendant filed objections to the Magistrate's report and recommendation on July 22, 2014 to which the Government filed a Reply on July 23, 2014. (Objections, ECF No. 95; Reply, ECF No. 101).

For the following reasons, the Court finds the Magistrate's report and recommendation should be adopted and Defendant's Second Motion to Dismiss DENIED.


The Court adopts the Magistrate Judge's proposed findings of fact as the factual history of this case as well as other factual summaries included in prior Orders issued by this Court.1 As noted above, the Defendant filed the instant Motion to Dismiss on April 11, 2014, alleging inter alia, prosecutorial vindictiveness. The motion was referred to the Magistrate Judge for report and recommendation on April 28, 2014.2


A United States District Court Judge may refer certain dispositive motions, including motions to dismiss indictments, to a United States Magistrate Judge for submission of proposed findings of fact and conclusions of law for disposition by the District Judge pursuant to 28 U.S.C. § 636(b) ; U.S. v. Houston, Case No. 3:13–10–DCRF, 2013 WL 3975405 *1 (E.D.Tenn. July 29, 2013). The District Judge may accept, reject or modify in whole or in part, the Magistrate's proposed findings and recommendations. U.S. v. Raddatz, 447 U.S. 667, 673–675, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980), reh'g den., 448 U.S. 916, 101 S.Ct. 36, 65 L.Ed.2d 1179 (1980). See 28 U.S.C. § 636(b)(1)(B).

In criminal cases, the District Judge is required to make a de novo determination of those portions of a Magistrate's report and recommendation to which specific objections are made regarding the dispositive matters contained the

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report and recommendation. Id. at 674–675, 100 S.Ct. 2406. While most actions by a Magistrate Judge are reviewed for clear error, dismissal of indictments and motions to suppress evidence are among the motions in criminal matters that are subject to de novo review. U.S. Fidelity and Guarantee Co. v. Thomas Solvent Co., 955 F.2d 1085, 1088 (6th Cir.1992).


I. The Magistrate's Report and Recommendation

In her report and recommendation, the Magistrate examined whether Defendant's Second Motion to Dismiss should be granted because of prosecutorial vindictiveness. (Report and Recommendation, ECF No. 78). Defendant asserts the Superseding Indictment should be dismissed because it demonstrates a realistic likelihood of vindictiveness on behalf of the prosecutor(s). Specifically, Defendant contends the Government filed the Superseding Indictment: 1) over one year after his initial arrest; 2) to punish or penalize him for successfully exercising his constitutional rights; and 3) to expose him to harsher penalties by “upping the ante” and adding the conspiracy charge and forfeiture provisions. Defendant asserts that the prosecutor(s)' actions in this case were unreasonable and atypical because the evidence presented to the grand jury that returned the Superseding Indictment could have been presented earlier. He further asserts that forfeiture provisions were rarely added to Superseding Indictments in other similar drug cases previously assigned to the three prosecutors involved in this case. Finally, the Defendant asserts that he has been prejudiced and subjected to further delays, again in violation of the Speedy Trial Act.3 (Report and Recommendation, ECF No. 78, pp. 881–82, Defendant's Second Motion, ECF No. 46).

The Magistrate's proposed conclusions of law recommend that Defendant's Second Motion to Dismiss should be denied. In her report and recommendation, the Magistrate concluded that Defendant failed to demonstrate a realistic likelihood of vindictiveness that would justify dismissal of the Superseding Indictment. She indicated that the Defendant failed to satisfy the four requisite elements: 1) an exercise of a protected right; 2) a prosecutorial stake in the exercise of that right; 3) unreasonable prosecutorial conduct; and 4) an intent to punish the defendant because of exercising the protected right. See generally, U.S. v. Suarez, 263 F.3d 468, 479 (6th Cir.2001). (Report and Recommendation, ECF No. 78, pp. 882–83). Specifically, the Magistrate's proposed conclusions of law are as follows:

1. The Defendant Exercised His Constitutional Rights

The Magistrate concluded that Defendant exercised his constitutional right to move for dismissal of the indictment under the Speedy Trial Act in Case No. 12–cr–20029–JTF. Furthermore, Defendant was successful in obtaining bond in the case at hand as well as in 12–cr20029–JTF, even though bond was ultimately revoked by this Court. (Id. at 883–84). Nevertheless, the Magistrate found that a presumption of prosecutorial vindictiveness does not exist in this regard. A defendant is expected to exercise his procedural due process right to file motions for bond or motions to dismiss for Speedy Trial violations when

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appropriate during a pretrial setting. The filing of such motions, standing alone, is insufficient to establish prosecutorial vindictiveness, especially in the pretrial stage of a case. (Report and Recommendation, ECF No. 78, pp. 883–84).

2. A Prosecutorial Stake in the Pretrial Stage of a Criminal Proceeding

The Magistrate's report and recommendation indicated that from the perspective of the government, there is little at stake in the early pre-trial stage of a criminal proceeding. The Magistrate indicated that because the Government's burden is less at the pre-trial stage, in comparison to the post-trial/post-conviction stage, the Government has less of a stake in the outcome of a pretrial motion, making the possibility of vindictiveness far less likely. United States v. Andrews, 633 F.2d 449, 454 (6th Cir.1980) (en banc ). Thus, in the case at hand, the Defendant's bond requests and motions to dismiss do not appear to have triggered a vindictive response from the Government. (Report and Recommendation, ECF No. 78, pp. 884–85).

3. Were the Prosecutor(s)' Actions Unreasonable or Vindictive?

The Magistrate determined that AUSA Kitchen's statements regarding the filing of additional counts that would subject Defendant to thirty years imprisonment were not unreasonable or indicative of prosecutorial vindictiveness. (Report and Recommendation, ECF No. 78, pp. 884–88). The Magistrate indicated that the decision whether or not to prosecute and what specific charges to bring before the grand jury is always within the prosecutor's discretion. Similarly, the Magistrate's report and recommendation proposed that the Court reject Defendant's argument that the prosecutors acted unreasonably, and displayed a clear intent to punish by subjecting him to harsher penalties and a forfeiture of his asserts. (ECF No. 78, pp. 888–90). The Magistrate noted that the Government's filing of a Superseding Indictment that contains an additional charge when based on newly-obtained evidence is insufficient to prove a vindictive prosecution claim. See Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).

4. The Speedy Trial Allegations, Unwarranted Delays and Listing of Other Prosecutions

Additionally, the Magistrate recommended that Defendant's Speedy Trial Act claims pertaining to the prior case, particularly the alleged showing of prejudice had been resolved by dismissal, and were inconsequential to the current proceeding. The report and recommendation noted that a new Speedy Trial Clock starts each time the Government re-indicts a Defendant. Furthermore, the Magistrate concluded that the Defendant is precluded from seeking review of these Speedy Trial claims until a...

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