The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER OF COURT
Presently pending before the Court is the MOTION TO VACATE filed by Defendant Franco Badini (Document No. 840) and the RESPONSE in opposition filed by the government (Document No. 846). After careful review of the submissions from the parties, as well as the applicable case law, the Motion will be denied.
On December 9, 2009, a federal grand jury sitting in the Western District of Pennsylvania returned an eight-count indictment against defendant David Curran and twelve co-defendants. At that time, Defendant Franco Badini was not indicted.
On March 30, 2010, a federal grand jury in the Western District of Pennsylvania returned a superseding indictment, in which Defendant Badini was charged in Court I of the superseding indictment, along with David Curran and thirteen other co-conspirators, with Conspiracy to Distribute and Possess with Intent to Distribute 5 Kilograms or More of Cocaine, a Schedule II Controlled Substance, in violation of 21 U.S.C. § 846, occurring from in or around January 2009 to on or about November 2009. According to the Superseding Indictment Memorandum, a conviction of Count I would result in a term of imprisonment of not less than ten (10) years to a maximum of life.
On July 29, 2011, the government filed an Information Stating Prior Convictions Pursuant to Title 21, United States Code, Section 851, which stated that Defendant had a prior felony drug conviction for possession with intent to deliver a controlled substance in violation of 35 P.S. § 780-113(a)(30). A certified copy of the Judgment of Conviction reflects that the conviction occurred in Allegheny County Court of Common Pleas on or about April 18, 1994. As a result of his prior conviction, the recidivist sentencing provisions set forth in Title 21, United States Code, Sections 841 and 846 apply. Accordingly, a conviction of Count I of the Superseding Indictment results in a term of imprisonment of not less than twenty (20) years to a maximum of life On August 8, 2011, voir dire and jury selection commenced in the trial against Defendant Badini and a co-conspirator, Bradley Barndt. The jury trial commenced on August 9, 2011. On August 16, 2011, the jury found both co-Defendants Badini and Barndt guilty of Count 1.
In the instant motion, Defendant argues that the government‟s plea bargaining tactics violated the Sixth Amendment and the due process guarantee of the United States Constitution. As relief, Defendant Badini requests the Court to vacate his conviction or alternatively, to strike the section 851 Information.
In May 2010, approximately two months after the Superseding Indictment had been filed, Defendant and his counsel engaged in a proffer session with the Assistant United States Attorney and case agent investigators assigned to this prosecution. Apparently, Defendant offered to waive trial and plead guilty to the ten-year mandatory sentence. During the proffer session, Defendant declined to discuss the alleged criminal activity of a certain person(s). Therefore, in the view of the government, the proffer session was "completely unproductive."
On January 29, 2011, the Assistant U.S. Attorney inquired via email whether Defendant would be willing to be plead guilty pursuant to a plea agreement with a provision stipulating a fifteen (15) year prison term. In that same email, the government advised Defendant that the government would file a section 851 Information if Defendant rejected the offer. On February 15, 2011, defense counsel responded that Defendant was not willing to plead guilty if it would result in a 15-year prison term. At that point, negotiations came to an end and no actual 15-year plea offer letter was ever extended to Defendant.
On July 29, 2011, ten days before trial commenced, the government filed the section 851 Information.
In the instant motion, Defendant argues "that the government‟s plea bargaining tactics denied him both the due process of law (sentencing consistent with the judicial mandate under section 3553) and his Sixth Amendment right to a fair trial (fair dealing in plea negotiations). " Mot. at ¶ 39. Defendant requests that his conviction be vacated or, alternatively, that the section 851 Information be stricken. The government responds that Defendant‟s motion is legally unsupported and lacks merit and should, therefore, be denied.
Defendant asserts that the government‟s decision to file the section 851 Information after unsuccessful plea negotiations constitutes vindictive prosecution. The United States Supreme Court has held that "to punish a person because he has done what the law clearly allows him to do is a due process violation of the most basic part." Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). However, the Supreme Court also clarified that "in the "give-and-take‟ of plea bargaining, there is no such element of punishment so long as the accused is free to accept or reject the prosecution‟s offer." Id. The Supreme Court reiterated that "[w]hile confronting a defendant with the risk of more severe punishment clearly may have a "discouraging effect on the defendant‟s assertion of trial rights, the imposition of these difficult choices [is] an inevitable‟ - and permissible - "attribute of any legitimate system which tolerates and encourages the negotiation of pleas.‟ " Id. at 364 (internal citations omitted). Further, the Supreme Court has declined to adopt a presumption of vindictiveness when the government seeks to enhance a defendant‟s sentence in response to a defendant‟s decision to proceed to ...