United States v. Terrell

• Decision Date: 09 December 2016
• Docket Number: No. CR15–3051–MWB,CR15–3051–MWB
• Citation: 220 F.Supp.3d 941
• Parties: UNITED STATES of America, Plaintiff, v. Jeremy D. TERRELL, Defendant.
• Court: U.S. District Court — Northern District of Iowa

220 F.Supp.3d 941

UNITED STATES of America, Plaintiff,

v.Jeremy D. TERRELL, Defendant.

No. CR15–3051–MWB

United States District Court, N.D. Iowa, Central Division.

Signed December 9, 2016

Shawn Stephen Wehde, US Attorney's Office, Sioux City, IA, for Plaintiff.

Sean M. Conway, Stuart J. Dornan, Dornan, Lustgarten & Troia, PC, LLO, Omaha, NE, for Defendant.

ORDER REGARDING DEFENDANT'S MOTION TO STRIKE INFORMATION

MARK W. BENNETT, UNITED STATES DISTRICT COURT JUDGE, NORTHERN DISTRICT OF IOWA

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND...944

II. LEGAL ANALYSIS...945

A. Vindictive Prosecution Generally...945

B. Vindictive Circumstances Here...948

1. The filing of the § 851 enhancement...948

2. Opportunity to cooperate...949

III. CONCLUSION...953

I. INTRODUCTION AND BACKGROUND

This case raises an apparent issue of first impression: May the executive branch of the United States government refuse to allow a defendant to continue to cooperate with law enforcement with the expectation (but no promise) of receiving a substantial assistance motion, simply because he exercises his statutory rights to a preliminary hearing and detention hearing after turning himself in to authorities? In this case, there are dire consequences to such a refusal due to the additional § 851 enhancement that requires a mandatory minimum twenty-year sentence.

This issue arises in defendant Jeremy D. Terrell's Motion to Strike Information (docket no. 68). In his motion, Terrell argues that the prosecution violated the Fifth Amendment's due process clause by filing an information for enhanced penalties, under 21 U.S.C. § 851, for refusing to waive his preliminary hearing and requesting a hearing to challenge his continued detention. The prosecution has resisted Terrell's motion. The prosecution contends that it made no threat to use a § 851 enhancement to impose an increased penalty for Terrell's prior felony drug conviction as a result of Terrell exercising his right to a preliminary hearing or a detention hearing.

On December 9, 2015, a complaint was filed charging Terrell with possessing with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and possessing with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The complaint followed the seizure of narcotics from Terrell on August 14, 2015, and August 29, 2015. Following his arrest, in August 2015, Terrell was questioned by law enforcement officers. Subsequently, Terrell, through counsel, voluntarily contacted law enforcement and signed a proffer agreement. On September 14, 2015, and October 26, 2015, Terrell participated in two proffer interviews at the FBI's Omaha field office.

The day after the complaint was filed, December 10, 2015, FBI Special Agent John D. Hallock contacted Terrell's counsel about Terrell turning himself in on the charges. Terrell voluntarily turned himself in to Agent Hallock that same day. On December 11, 2015, Terrell had his initial appearance before a United States magistrate judge. At Terrell's initial appearance, a combined preliminary and detention hearing was set for December 15, 2015, before then United States Magistrate Judge Leonard T. Strand.¹

On December 15, 2015, shortly before the scheduled preliminary and detention hearing, an Indictment was obtained against Terrell, charging him with conspiracy to distribute 500 grams or more of a methamphetamine mixture which contained 50 grams or more of pure methamphetamine, having previously been convicted of a felony drug offense in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 851 (Count 1), possessing with intent to distribute 500 grams or more of a methamphetamine mixture which contained 50 grams or more of pure methamphetamine, having previously been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 851 (Count 2), and possessing with intent to distribute cocaine, having previously been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851 (Count 3).²

Before testimony was offered at the preliminary and detention hearing, the prosecution made the following statement:

I did request the defendant and his counsel consider waiving preliminary hearing and—and detention in this particular matter due to certain circumstances including risk to the defendant due to—overall due to his involvement in this offense and risk of other offenders considering him a cooperator even though he is not a cooperator at this time.

He has declined that, and I want him to know because I did indicate to him that if he went forward with this hearing that it would be likely that the government would not seek his cooperation in the future, and he does face a 20-year mandatory minimum. I just wanted him to be aware of those things, and I wanted those on the record after he declined that option.

Preliminary Hearing Tr. at 2-3. Judge Strand then asked defense counsel if there was any record he wished to make at that time. In response, defense counsel stated:

Just briefly on that front, my client's been participating in cooperation since August of this year. He's had multiple meetings with law enforcement both in my presence and outside my presence. I've indicated to the U.S. Attorney's Office that my client has not sealed off the possibility of cooperating. It's just—it's he voluntarily turned himself in on this particular occasion after working for several months.

Preliminary Hearing Tr. at 3. Judge Strand then observed: "It sounds like the opportunity to cooperate's going to go away if we have this hearing. Do you understand that?" Preliminary Hearing Tr. at 3-4. After conferring with Terrell, defense counsel responded: "Thank you. Yes, we are prepared to proceed, Your Honor." Preliminary Hearing Tr. at 4.

The preliminary and detention hearing proceeded as scheduled. At the conclusion of the hearing, Judge Strand found probable cause for the charges and that the prosecution had established grounds for Terrell's detention.

On August 5, 2016, Terrell appeared before United States Magistrate Judge C.J. Williams and entered a plea of guilty to Counts 1, 2, and 3 of the Indictment. I, subsequently, accepted Terrell's plea of guilty to the three counts. Terrell then filed the Motion to Strike Information presently before me. I then held a hearing on Terrell's motion.

II. LEGAL ANALYSIS

A. Vindictive Prosecution Generally

A prosecutor enjoys broad discretion in determining whom to prosecute for what crime, and such pretrial charging decisions are presumed to be legitimate. Bordenkircher v. Hayes , 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).³ Nonetheless, a prosecutor violates due process when he or she penalizes an individual for exercising a statutory or constitutional right. See United States v. Goodwin , 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) ("To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.") (internal quotation omitted); United States v. Robinson , 809 F.3d 991, 1000 (8th Cir. 2016) ("Although the government may take action to punish a defendant for committing a crime, punishing a defendant for exercising his valid legal rights is impermissible prosecutorial vindictiveness.") (quoting United States v. Campbell , 410 F.3d 456, 461 (8th Cir. 2005) ); see also United States v. Jenkins , 537 F.3d 1, 3 (1st Cir. 2008) ("A vindictive prosecution-one in which the prosecutor seeks to punish the defendant for exercising a protected statutory or constitutional right-violates a defendant's Fifth Amendment right to due process.").

Accordingly, the prosecution's action may be vacated upon sufficient proof of vindictiveness. See Thompson v. Armontrout , 808 F.2d 28, 33 (8th Cir. 1986) (affirming district court's order requiring petitioner's release on parole after finding the state vindictively denied him parole); United States v. Meyer , 810 F.2d 1242, 1246 (D.C. Cir. 1987) (holding that district court did not abuse its discretion in dismissing informations on ground of prosecutorial vindictiveness). A defendant who lacks direct evidence of a vindictive motive can establish a rebuttable presumption of vindictiveness by demonstrating circumstances that reveal a sufficient likelihood of vindictiveness. Jenkins , 537 F.3d at 3. However, because such a presumption "may operate in the absence of any proof of an improper motive," Goodwin , 457 U.S. at 373, 102 S.Ct. 2485, to establish a presumption of prosecutorial vindictiveness, the defendant must show that "the circumstances of a case pose a ‘realistic likelihood’ of such vindictiveness." Blackledge v. Perry , 417 U.S. 21, 27, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The circumstances must present a realistic likelihood of vindictiveness that would be "applicable in all cases," Goodwin , 457 U.S. at 381, 102 S.Ct. 2485, and any such presumption may be "overcome by objective evidence justifying the prosecutor's action," id. at 376, 102 S.Ct. 2485 n. 8 ; see United States v. LaDeau , 734 F.3d 561, 566 (6th Cir. 2013) (The prosecution "bears the burden of rebutting the presumption with ‘objective, on-the-record explanations' such as ‘governmental discovery of previously unknown evidence’ or ‘previous legal impossibility.’ ") (quoting Bragan v. Poindexter , 249 F.3d 476, 482 (6th Cir. 2001) ). In determining whether the presumption of vindictiveness applies, "a court must examine the prosecution's actions in the context of the entire proceedings." United States v. Krezdorn , 718 F.2d 1360, 1365 (5th Cir. 1983) (en banc ). Even if a defendant establishes a realistic likelihood of vindictiveness, however, the prosecution still has an opportunity to proffer legitimate, objective reasons for its conduct. See Goodwin , 457 U.S. at 374, 102 S.Ct. 2485 ; Krezdorn , 718 F.2d at 1365.

Raising such a presumption is especially difficult in a pretrial setting, however, given that a prosecutor is...