Defendant’s Motion to Dismiss for Vindictive Prosecution; Declaration of Solomon Kim; Exhibits — No. 2:22-cr-00374 (Dkt. 22, C.D. Cal.)

Summary

The government's opposition to the defendant's motion to dismiss for vindictive prosecution, with the declaration of Solomon Kim and exhibits, filed in the U.S. District Court for the Central District of California in United States v. Sean Schoepflin, No. CR 22-374-FMO-1, docketed as 2:22-cr-00374, as Document 22 of 9 pages, for a hearing on October 14, 2022 at 4:00 p.m. It is filed by United States Attorney E. Martin Estrada through Assistant United States Attorneys Solomon Kim of the Terrorism and Export Crimes section and Ali Moghaddas of Major Frauds, with Christopher D. Grigg, Chief of the National Security Division, also listed. The government argues that the motion should be denied and, in its conclusion, asks the Court to deny the defendant's motion to dismiss.

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     Case 2:22-cr-00374-FMO Document 22 Filed 09/27/22 Page 1 of 9 Page ID #:98



1    E. MARTIN ESTRADA
     United States Attorney
2    CHRISTOPHER D. GRIGG
     Assistant United States Attorney
3    Chief, National Security Division
     SOLOMON KIM (Cal. Bar No. 311466)
4    Assistant United States Attorney
     Terrorism and Export Crimes
5    ALI MOGHADDAS (Cal Bar No. 305654)
     Assistant United States Attorney
6    Major Frauds
          1500/1100 United States Courthouse
7         312 North Spring Street
          Los Angeles, California 90012
8         Telephone: (213) 894-2450
          Facsimile: (213) 894-0140
9         E-mail:   solomon.kim@usdoj.gov
          E-mail:   ali.moghaddas@usdoj.gov
10
     Attorneys for Plaintiff
11   UNITED STATES OF AMERICA

12                          UNITED STATES DISTRICT COURT

13                    FOR THE CENTRAL DISTRICT OF CALIFORNIA

14   UNITED STATES OF AMERICA,               No. CR 22-374-FMO-1

15             Plaintiff,                    GOVERNMENT’S OPPOSITION TO
                                             DEFENDANT’S MOTION TO DISMISS FOR
16                  v.                       VINDICTIVE PROSECUTION;
                                             DECLARATION OF SOLOMON KIM;
17   SEAN SCHOEPFLIN,                        EXHIBITS

18             Defendant.                    Hearing Date: October 14, 2022
                                             Hearing Time: 4:00 p.m.
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21         Plaintiff United States of America, by and through its counsel
22   of record, the United States Attorney for the Central District of
23   California and Assistant United States Attorneys Solomon Kim and Ali
24   Moghaddas, hereby files its Opposition to Defendant’s Motion to
25   Dismiss for Vindictive Prosecution.
26   ///
27   ///
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1        This Opposition is based upon the attached memorandum of points

2    and authorities, the files and records in this case, the declaration

3    of Solomon Kim, and such further evidence and argument as the Court

4    may permit.

5    DATED: September 27, 2022              E. MARTIN ESTRADA
                                            United States Attorney
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                                            CHRISTOPHER D. GRIGG
7                                           Assistant United States Attorney
                                            Chief, National Security Division
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                                            __/s/ ___________________________
10                                          SOLOMON KIM
                                            ALI MOGHADDAS
11                                          Assistant United States Attorneys
12                                          Attorneys for Plaintiff
13                                          UNITED STATES OF AMERICA

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1                       MEMORANDUM OF POINTS AND AUTHORITIES

2    I.    INTRODUCTION

3          This is now defendant’s second attempt to dismiss charges

4    against him based on the government’s allegedly improper addition of

5    new charges following his rejection of a plea offer -- first, in the

6    related case concerning defendant’s theft of hundreds of thousands of

7    dollars in COVID-19 relief loans (No. 22-CR-121-FMO, Dkt. 76), and

8    now, in this matter for his illegal possession of firearms and

9    ammunition.   While defendant couches his motions to dismiss under

10   different legal theories (one for outrageous government conduct and

11   the other for vindictive prosecution), the conclusion remains the

12   same in both: nothing about the government’s conduct was improper.

13   As made clear in the government’s opposition to defendant’s motion to

14   dismiss for outrageous government conduct, the government’s filing of

15   new charges following defendant’s rejection of a plea offer was

16   entirely consistent with binding Supreme Court and Ninth Circuit

17   precedent.    Defendant’s motion should therefore be denied.

18   II.   STATEMENT OF FACTS1
19         On March 15, 2022, the government obtained a federal search

20   warrant of defendant’s residence, which agents executed several days

21   later.    (Declaration of Solomon Kim (“Kim Decl.”), ¶ 3.)         When agents

22   searched defendant’s home, they found, among other items, multiple

23   firearms and ammunition.     (Id.)

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26         1Because defendant’s instant motion concerns the same set of
     facts that pertain to defendant’s motion to dismiss for outrageous
27   government conduct in his related case, the government incorporates
     by reference the statement of facts from the government’s opposition
28   to defendant’s motion to dismiss for outrageous government conduct.
     (See No. 22-CR-121-FMO, Dkt. 76.)
     Case 2:22-cr-00374-FMO Document 22 Filed 09/27/22 Page 4 of 9 Page ID #:101



1         Following the search warrant execution, on April 4, 2022, a

2    federal grand jury returned an indictment against defendant for wire

3    fraud and money laundering arising from defendant and his codefendant

4    Erika Leon’s theft of COVID-19 relief loans (“COVID-19 Loan Fraud

5    Case”).   (Id. ¶ 4.)    The government did not initially charge

6    defendant for the unlawful possession of the firearms and ammunition.

7         Instead, starting as early as May 2022, the government reached

8    out to then-defense counsel, Deputy Federal Public Defendant (“DFPD”)

9    Deborah Gonzalez, to discuss a potential proffer session with

10   defendant regarding the offense conduct.          (Id. ¶ 5.)    The government

11   informed DFPD Gonzalez that the government intended to charge her

12   client, who was a convicted felon, with being a felon in possession

13   of ammunition and firearms.      (Id.)       However, the government told DFPD

14   Gonzalez that it would hold off on doing so in the event defendant

15   was interested in participating a proffer with the government and

16   reaching a disposition in this matter.          (Id.)   On May 12, 2022, DFPD

17   Gonzalez informed the government that defendant objected to a

18   continuance of the trial date beyond June 24, 2022.            (Id. ¶ 6.)
19        Sometime thereafter, DFPD David Wasserman substituted in as

20   counsel for defendant.     (Id. ¶ 7.)        The government extended the same

21   invitation to participate in a proffer to DFPD Wasserman.            (Id.)

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1         On August 1, 2022, DFPD Wasserman confirmed to the government

2    that defendant still was not interested in participating in a proffer

3    session.   (Id. ¶ 9.)    In response, the government emailed DFPD

4    Wasserman stating that it would likely be sending over a plea

5    agreement for defendant’s consideration.           (Id., Ex. 1.)   The

6    government also noted in its email that it intended to charge

7    defendant with being a felon in possession of firearms and ammunition

8    should the case proceed to trial.        (Id.)

9         Two days later, on August 3, 2022, following a request by DFPD

10   Wasserman, the Court appointed Kristen Richards as defendant’s new

11   counsel.   (Id. ¶ 10.)      That same day, the government emailed Ms.

12   Richards a plea agreement in which the government agreed not to file

13   charges against defendant stemming from the firearms and ammunition

14   found at his residence on March 18, 2022, should defendant accept the

15   plea offer.   (Id., Ex. 2.)     Due to the upcoming trial date of

16   September 13, 2022, the government provided a response deadline of

17   August 10, 2022.    (Id.)

18        Due to a conflict with Ms. Richards, the Court appointed
19   defendant his current counsel, Gerald Salseda, on August 5, 2022.

20   (Id. ¶ 12.)   That same day, the government forwarded both its prior

21   email and plea agreement to Mr. Salseda in an email.           (Id., Ex. 3.)

22   Because Mr. Salseda had just been appointed, the government extended

23   the plea deadline to August 12, 2022.           (Id.)   The government also

24   offered to provide Mr. Salseda more time to consider the plea so long

25   as the trial was continued.      (Id.)       The government never received a

26   signed plea agreement, and Mr. Salseda never asked for more time to
27   consider the plea offer.      (Id. ¶ 14.)

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1         On August 16, 2022, a federal grand jury returned the instant

2    indictment against defendant for being a felon in possession of

3    firearms and ammunition.     (Id. ¶ 15.)

4    III. ARGUMENT

5         Both the Supreme Court and the Ninth Circuit have repeatedly

6    held that it is not vindictive to file additional charges following a

7    defendant’s rejection of a plea offer.         Here, the government did

8    just that and was transparent from the start about its plans to bring

9    additional charges if a resolution was not reached.          “As a matter of

10   law, the filing of additional charges to make good on a plea

11   bargaining threat . . . will not establish the requisite punitive

12   motive [for a claim of vindictive prosecution].         In the ‘give-and-

13   take’ of plea bargaining, there is no such element of punishment or

14   retaliation so long as the accused is free to accept or reject the

15   prosecution's offer.”     United States v. Kent, 649 F.3d 906, 914 (9th

16   Cir. 2011) (alterations and quotation marks omitted) (citing

17   Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)); United States v.

18   North, 746 F.2d 627, 632 (9th Cir. 1984) (“The government may, in the
19   course of plea bargaining, offer to reduce charges or threaten

20   reindictment under more serious charges, and it may make good on

21   either promise.”); see also Bordenkircher, 434 U.S. at 365 (“We hold

22   only that the course of conduct engaged in by the prosecutor in this

23   case, which no more than openly presented the defendant with the

24   unpleasant alternatives of forgoing trial or facing charges on which

25   he was plainly subject to prosecution, did not violate the Due

26   Process Clause of the Fourteenth Amendment.”); United States v.
27   Goodwin, 457 U.S. 368, 380 (1982) (“An initial indictment -- from

28   which the prosecutor embarks on a course of plea negotiation -- does

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1    not necessarily define the extent of the legitimate interest in

2    prosecution.   For just as a prosecutor may forgo legitimate charges

3    already brought in an effort to save the time and expense of trial, a

4    prosecutor may file additional charges if an initial expectation that

5    a defendant would plead guilty to lesser charges proves unfounded.”).

6    The government’s plea negotiations in this case therefore were not

7    vindictive in any way.

8         Rather than explain how his claim can withstand the merits and

9    binding nature of the aforementioned cases, defendant cites and

10   relies on general principles concerning vindictive prosecution in

11   support of his motion.     (See generally Dkt. 17 at 5-7.)         Ironically,

12   many of the cases that defendant himself cites reiterate that the

13   filing of new charges after plea negotiations fail do not constitute

14   vindictive prosecution.     See, e.g., United States v. Groves, 571 F.2d

15   450,453 (9th Cir. 1978) (citing Bordenkircher, 434 U.S. 357)

16   (distinguishing case from one in which new charges are properly filed

17   after failed plea negotiations).

18        Defendant’s argument that the government filed additional
19   charges in retaliation for his assertion of his speedy trial rights

20   is belied by the record.     Defendant asserted his speedy trial rights

21   by objecting to a trial continuance for the first time on May 12,

22   2022.   (Kim Decl., ¶ 6.)    In response, the government did not file

23   any additional charges.     Instead, the government continued to provide

24   defendant the opportunity to resolve the case for three months as the

25   parties discussed the potential of a proffer and plea agreement.

26   Indeed, defendant does not (and cannot) dispute that a formal plea
27   agreement was extended to him even after he objected to a trial

28   continuance.   However, despite this plea offer, defendant neither

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1    accepted it nor asked for additional time to consider it.

2    Accordingly, the government’s decision to add the felon-in-possession

3    charge after defendant rejected the government’s repeated attempts to

4    resolve his COVID-19 Loan Fraud Case was not vindictive.

5         Furthermore, defendant’s attempt to bolster his claim of

6    vindictive prosecution by characterizing the government’s one-week

7    deadline for consideration of the plea offer as being “patently

8    unreasonable” fails.     (See Dkt. 17 at 6.)     As with his prior motion,

9    defendant fails to cite a single case holding that a one-week

10   deadline (or any other plea deadline) constitutes vindictive

11   prosecution or otherwise improper conduct.        See Weatherford v.

12   Bursey, 429 U.S. 545, 561 (1977) (“[T]here is

13   no constitutional right to plea bargain.”).         Moreover, defendant’s

14   complaint about the one-week deadline rings hollow given that he

15   never previously objected nor requested an extension of that

16   deadline.2

17        While defendant never requested an extension of any kind, he

18   complains that the government was only willing to extend the plea
19   offer date if defendant agreed to continue the trial date, seemingly

20   to suggest that defendant would have asked for more time to consider

21   the plea if he could have.      Not so.   The government never conditioned

22   the extension of defendant’s plea deadline on his agreement to

23   continue the trial date.     (See Kim Decl., Ex. 3.)       Rather, as stated

24   in its email, and given the impending trial date, the government

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          2 Defendant also knew for months that a plea offer along these
27   lines was forthcoming as the government repeatedly told defense
     counsel that the government would hold off filing the felon-in-
28   possession case to determine if the parties could reach a resolution
     in the COVID Loan Fraud Case.
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1    advised that it was willing to continue the plea deadline “so long as

2    the trial date is continued,” which could have occurred if

3    codefendant Leon, for example, sought another continuance.           In any

4    case, while defendant never sought an extension, there would be

5    nothing unreasonable about conditioning an extension of the time to

6    consider a plea offer on a trial continuance, to conserve resources

7    of the parties and the Court, and avoid preparing for trial

8    unnecessarily.     Because the government’s plea negotiations were

9    proper and done consistent with binding precedent, defendant’s motion

10   should be denied.

11   IV.   CONCLUSION

12         For the foregoing reasons, the government respectfully requests

13   that this Court deny defendant’s motion to dismiss.

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