United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
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
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.
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
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. (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).
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
OF COUNT II
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
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)).
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).
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).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.
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.
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, ...