The opinion of the court was delivered by: Judge Caputo
Presently before the Court are Defendant Darrell Gist's motions to dismiss the indictment brought pursuant to Federal Rule of Criminal Procedure 12(b)(2) and motion for subpoena duces tecum pursuant to Federal Rule of Criminal Procedure 17(c). (Doc. 28.) Motion I is a motion to dismiss the indictment for selective prosecution. Motion II is a motion for subpoena duces tecum for Defendant's selective prosecution claim. Motion III is a motion to dismiss the indictment for vindictive prosecution.
Motion I to dismiss the indictment based on selective prosecution and Motion II for subpoena duces tecum for this selective prosecution claim will be denied because Defendant does not present sufficient credible evidence that similarly situated individuals of other races were not prosecuted. Motion III to dismiss the indictment on grounds of vindictive prosecution will be denied because Defendant has failed to show that the United States attorney had a vindictive motive and that the decision to prosecute was not based on the usual determinative factors.
Defendant was indicted by a federal grand jury on September 25, 2007 on charges of assault, possession of a weapon at a federal prison, and making a false statement. (Br. in Supp., Doc. 29, at 1.) On October 4, 2007, Defendant was arraigned before United States Magistrate Judge Thomas M. Blewitt. (Id.) On March 17, 2008, Defendant filed pretrial motions, including the present motions to dismiss and motion for subpoena duces tecum. (Id.) These motions are fully briefed and ripe for disposition.
The Government alleges that Defendant, "a 39-year-old African American male serving a 32-year sentence for Use of a Firearm During and in Relation to a Crime of Violence," attacked "inmate Amaya in a bathroom" and falsely claimed that he had been stabbed by that other inmate and was fighting back in self defense. (Br. in Resp., Doc. 32, at 1.) The Government also alleges that Defendant was in possession of a knife which he dropped before the alleged assault. (Id.)
The Government's allegations stem from a video tape, which captured the assault and illegal weapon possession, showing Defendant and Amaya in a bathroom, in which the lights were turned off. (Id. at 1-2.) The video shows Defendant drop a knife immediately before striking Amaya in the head. (Id. at 2.) Amaya exited the bathroom and was followed by Defendant who continued his assault. (Id.) Defendant soon collapsed dramatically. (Id.) Assistance arrived and found "superficial puncture wounds" in Defendant. (Id.) Defendant, an inmate with high risk of escape, was taken to the hospital, returned to the prison, and put in a Special Housing Unit. (Id.)
Defendant disputes the Government's allegations, claiming that he was not the instigator of the altercation and was stabbed by another inmate. (Br. in Supp., Doc. 29, at 3.) He claims that, despite the Government's allegations, he did not stab himself. (Id.) Defendant told investigators that he was attacked in the bathroom and could not see what was going on because the lights were off. (Br. in Resp., Doc. 32, at 2.)
Defendant was interviewed about the incident and racial tensions in the prison and was not provided Miranda warnings. (Id. at 3.) This fact is undisputed. According to Defendant, SIS Lieutenant Kaszuba interviewed Defendant and asked him who his attacker was. (Br. in Supp., Doc. 29, at 3.) Defendant refused to answer because inmates who tell on other inmates are retaliated against. (Id.) The Lieutenant allegedly told Defendant that if he did not cooperate, he would be prosecuted. (Id.) Defendant still refused to cooperate. (Id.) Defendant was later prosecuted with the present charges. (Id.)
Presently, Defendant acknowledges that he was involved in the alleged altercation on September 9, 2007. (Id. at 2.) Defendant alleges that non African American inmates in his prison who are involved in fights with other non African Americans are not prosecuted for their actions. (Id.) Defendant points to two incidents, the first in which 130 non African American inmates rioted and attacked one another. (Id.) In the second, a non African American inmate struck another inmate with a fire extinguisher. (Id.) He alleges that the only consequences of these incidents were administrative sanctions. (Id.)
Under Federal Rule of Criminal Procedure 12(b)(2), defenses and objections based on defects in the indictment must be raised prior to trial. In ruling on a Rule 12(b)(2) motion to dismiss, the court's role is not to determine the sufficiency of the evidence, but to determine whether the allegations in the indictment are sufficient to charge the named offense. See United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir. 2000) (citing United States v. Sampson, 371 U.S. 75, 78-79 (1962)). The trial court should consider only those objections "that are capable of determination without the trial of the general issue." United States v. Carlos Alberto Diaz-Gomez, No. CRIM. 88-484-1, 2000 WL 1868394, at *3 ...