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UNITED STATES v. CADY

March 6, 1997

UNITED STATES OF AMERICA against STEPHEN P. CADY, Defendant.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND

 A. Procedural Background

 Pending before the Court is Defendant's Motion for Reconsideration of the Court's Memorandum-Decision & Order of October 31, 1996. In its Decision of October 31, 1996, this Court, inter alia, denied Defendant's Motion to Dismiss Indictment 96-CR-238 on the basis of prosecutorial vindictiveness, and denied Defendant's Motion to Dismiss on the basis of the Government's waiver of its right to bring a second indictment. See United States v. Cady, 1996 WL 650662 (N.D.N.Y. 1996).

 Subsequent to the filing of Defendant's Motion for Reconsideration, the Court became aware of additional evidence that might be probative of the issue of prosecutorial vindictiveness. Accordingly, the Court notified Defendant's counsel, Michael Pinnisi, and Assistant United States Attorney Miroslav Lovric of this information via a conference on the record on December 12, 1996.

 On December 14, 1996, after reviewing the party's submissions, the Court vacated its prior Memorandum-Decision & Order dated October 31, 1996, as it pertained to Defendant's motion for dismissal of the Indictment based on vindictive prosecution. See United States v. Cady, 1996 WL 732826 (N.D.N.Y. 1996). Furthermore, the Court reserved on Defendant's Motion to Dismiss for prosecutorial vindictiveness, pending consideration of additional evidence on the issue of the Government's motivation in bringing Indictment 96-CR-238.

 On February 7, 1997, the Government submitted its evidentiary response to Defendant's Motion to Dismiss for prosecutorial vindictiveness. On February 19, 1997, Defendant submitted his reply papers. Accordingly, the factual record is sufficiently developed for the Court to make a final determination on the issue of prosecutorial vindictiveness.

 B. Factual Background

 On April 8, 1994, the Government filed a criminal complaint charging Stephen Cady with using and carrying an Uzi machine gun during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). On August 3, 1994, Cady waived indictment and was charged in Information 94-CR-280 with one count of manufacturing marihuana in violation of 18 U.S.C. § 841(a)(1), and one count of possession of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Cady executed a written plea agreement on that same day, and entered pleas of guilty to both charges. On October 28, 1994, this Court sentenced Cady to eight (8) months imprisonment on the manufacturing count, and sixty (60) months imprisonment on the weapon possession count, to run consecutively.

 The current Indictment, 96-CR-238, includes five counts, charging Cady with manufacturing, distributing, and possessing marihuana, all in violation of 18 U.S.C. § 841, and with the use and carry of a .9mm Uzi machine gun, 7.62 semi-automatic rifle, and 7.62 bolt action rifle in violation of 18 U.S.C. § 924(c)(1).

 Defendant argues, inter alia, that the instant indictment is a "vindictive response" to Cady's filing of a 28 U.S.C. § 2255 motion to modify his sentence. In response, the Government avers that Cady violated the plea agreement in 1994, when he intentionally misled the Government in its debriefings of Cady and that Assistant United States Attorney Miroslav Lovric ("AUSA Lovric") told Defendant as much on September 19, 1994, when the Government canceled all further debriefings.

 II. DISCUSSION

 In its December 14, 1996 Memorandum-Decision & Order, the Court stated that it would reconsider Defendant's motion for dismissal of Indictment 96-CR-238 on the basis that the Indictment was the product of vindictive prosecution. However, the Court stated that it would not reconsider its prior decision that the Government did not waive its right to bring a second indictment. See Cady, 1996 WL 650662, *4.

 "In some circumstances a presumption of unconstitutional vindictiveness arises when prosecutors employ practices that 'pose a realistic likelihood of 'vindictiveness.'" Lane v. Lord, 815 F.2d 876, 878 (2d Cir. 1987) (emphasis added) (quoting Blackledge v. Perry, 417 U.S. 21, 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974)). An example of a suspect practice is where a prosecutor lodges more severe charges following a defendant's post-conviction ...


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