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United States v. Thymaras

United States District Court, D. South Dakota, Western Division

June 10, 2016





         Defendant Alexandros Thymaras filed a motion to dismiss the superseding indictment or, alternatively, count II of the superseding indictment on the basis of vindictive prosecution. (Docket 73). Coupled with that motion, Mr. Thymaras filed a motion to compel the government to produce certain information associated with the motion to dismiss count II. (Docket 88). The motion to compel was referred to United States Magistrate Judge Daneta Wollmann for resolution pursuant to 28 U.S.C. § 638. (Docket 93). Following the completion of briefing, Magistrate Judge Wollmann held a hearing to consider the oral arguments of counsel. (Docket 109). On January 12, 2016, Magistrate Judge Wollmann issued an order denying defendant’s motion to compel discovery. (Docket 111). Mr. Thymaras filed a motion (Docket 114) for an extension of time to file objections to the magistrate judge’s order pursuant to 28 U.S.C. § 638(b)(1)(A) and a second motion (Docket 115) seeking leave to file a motion for reconsideration by the magistrate judge. The court granted Mr.

         Thymaras’ motion for an extension of time to file objections and denied his motion for leave to file a motion for reconsideration. (Dockets 116 & 117). Additional text orders were entered granting extensions of time for Mr. Thymaras to file his objections to the magistrate judge’s order. (Dockets 119 & 121). Mr. Thymaras timely filed his objections and requested reconsideration of the order by the district court. (Docket 124).

         For the reasons stated below, the defendant’s motion to dismiss count II of the superseding indictment is denied and his objections to the magistrate judge’s order are overruled.


         On August 13, 2014, a grand jury indicted Mr. Thymaras for attempted commercial sex trafficking in violation of 18 U.S.C. §§ 1591(a)(1), 1591(b)(2), 1594(a) and 1594(d)(1). (Docket 1). On March 11, 2015, Mr. Thymaras filed a motion to suppress all physical evidence seized incident to his arrest and all post-arrest statements.[1] (Docket 51). While the motion to suppress was pending before Magistrate Judge Wollmann, a superseding indictment was filed charging Mr. Thymaras with the additional offense of attempted enticement of a minor using the internet in violation of 18 U.S.C. § 2422(b) (“Count II”). (Docket 69).

         The defendant claims count II was added by the government “[i]n a transparent attempt to quell Thymaras’ zealous defense against the alleged charges, the Government, without new or further evidence, and in blatant response to the pending motion to suppress, improperly filed a superseding indictment increasing the number and gravity of the charges he is facing.” (Docket 74 at p. 4). He argues “[t]he filing of the Government’s superseding indictment . . . is vindictive.”[2] Id.


         “Whether to . . . grant a pre-trial motion to dismiss an indictment [is a] matter[] within the trial court’s discretion.” United States v. Kelley, 152 F.3d 881, 885 (8th Cir. 1998) (referencing United States v. Valona, 834 F.2d 1334, 1340 (7th Cir. 1987) (hearing on outrageous government conduct defense is only required when a defendant presents specific facts sufficient to raise significant doubt about the propriety of the government’s action) (other references omitted). To establish a claim of selective prosecution there must be evidence that (1) Mr. Thymaras was singled out for prosecution while “others similarly situated have not been prosecuted, ” and (2) the government’s effort to single him out “was based on an impermissible motive such as race, religion, or the exercise by defendant of constitutional rights.” United States v. Matter, 818 F.2d 653, 654-55 (8th Cir. 1987) (citing United States v. Hintzman, 806 F.2d 840, 842 (8th Cir. 1986)).

         “The burden of proof of selective or vindictive prosecution is on the defendant.” Kelley, 152 F.3d at 885 (referencing United States v. Huff, 959 F.2d 731, 735 (8th Cir.), cert. denied, 506 U.S. 855 (1992)). “The defendant’s burden is a heavy one, and because we afford broad discretion to [prosecutors], we require ‘a showing of “intentional and purposeful discrimination.” ’ ” Id. at 886 (citing Matter, 818 F.2d at 654-55) (internal citations omitted)). “This is because ‘so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file . . . generally rests entirely in [the prosecutor’s] discretion.’ ” Id. (citing Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)).

         “In order to demonstrate prosecutorial vindictiveness, a defendant must show that the superseding indictment containing the additional charges was sought in retaliation for exercising constitutional or statutory rights.” United States v. Chappell, 779 F.3d 872, 879 (8th Cir.), cert. denied, U.S., 136 S.Ct. 281 (2015) (citing United States v. Punelli, 892 F.2d 1364, 1371 (8th Cir. 1990)). “A defendant can prove such impermissible prosecutorial vindictiveness with objective evidence of the prosecutor’s ‘vindictive or improper motive’ in increasing the number or severity of charges.” Id. (citing United States v. Leathers, 354 F.3d 955, 961 (8th Cir. 2004)). “Absent such evidence, a defendant may, in rare instances, rely upon a presumption of vindictiveness . . . if he provides sufficient evidence to show a reasonable likelihood of vindictiveness exists . . . .” Id. (internal quotation marks and citations omitted) (emphasis in original).

         Mr. Thymaras claims “[t]he first sign of the Government’s improper conduct [is] based on its agitation . . . on the day before . . . [the] suppression hearing, at which time a last-minute Government application was filed to revoke Thymaras’ bail. Conveniently, the Government offered to withdraw the motion if one of the suppression arguments was withdrawn.” (Docket 74 at pp. 4-5).[4]Mr. Thymaras argues “[t]he Government’s motion alleged that Thymaras was solely a Canadian citizen, so his bail should be revoked. . . . the Government . . . offered to withdraw the application [to revoke bail] if Thymaras withdrew his claims under the Vienna Convention, or relating to it, regarding suppression.” Id. at p. 5 n.3. The defendant claims the government held “no actual belief that detention was proper, but this was rather an improper attempt to force the withdrawal of a claim Thymaras had every right to assert.” Id. at p. 5 n.1.

         Mr. Thymaras claims “the Government’s application [for detention] was so questionable that . . . Magistrate Judge Daneta Wollmann denied the application without the need for opposition papers to be filed [because defense arguments were sufficient].” Id. at p. 5. Mr. Thymaras asserts that “two days later, after having its case pushed to the brink during the exhaustive suppression hearing, the prosecution threatened a superseding indictment . . . and added a new charge soon thereafter.” Id. He argues “[t]he absence of any rational justification for filing the new charge showcases ulterior motives and a vindictive response to Thymaras’ legally protected activities, including challenging the underlying probable cause which served as a basis for his arrest.” Id. Mr. Thymaras submits the court should “conclude that the superseding indictment was filed with vindictive intent, and [the superseding indictment] should therefore be dismissed in its entirety, or, alternatively, the second count thereof.” Id. at p. 6.

         The government’s response presents a different scenario. (Docket 78). The government contends Mr. Thymaras’ citizenship was an issue from the moment of his arrest. During the initial court appearance Mr. Thymaras’ counsel at that time, Robert Van Norman, sought personal release because the defendant was a United States citizen. Mr. Van Norman argued his client “holds United States citizenship, derived from his mother . . . who was born in the State of New York and who lived in New York for many years prior to marrying a Canadian citizen. . . . Evidence of Alex’s U.S. citizenship is reflected by his now expired U.S. passport.” (Docket 13 ¶ 3). Counsel re-urged this position during a subsequent bond hearing. (Docket 56 at p. 11:9-20). Based partly on this representation, ...

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