US v. Steven Swan

2003 DNH 233

• Court: District Court, D. New Hampshire
• Decided: December 12, 2003
• Docket: CR-03-66-B
• Status: Published

Opinion

US v . Steven Swan CR-03-66-B 12/12/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal N o . 03-36-01-B Opinion N o . 2003 DNH 233 Steven Swan

O R D E R

Steven Swan contends that he has been the victim of a

vindictive and selective prosecution in retaliation for

exercising his First Amendment rights. I denied Swan’s motion

for further discovery, an evidentiary hearing and dismissal

asserting this defense. Swan seeks reconsideration.

As the First Circuit has explained,

[s]ince the government is presumed to have exercised its prosecutorial responsibilities in good faith . . . defendants are not entitled to evidentiary hearings on their selective or vindictive prosecution claims unless they first identify facts tending to demonstrate (i) that the government refrained from prosecuting others who were “similarly situated” and (ii) that the reasons for any such discrimination were illegitimate.

United States v . Serafino, 281 F.3d 3 2 7 , 331 (1st Cir. 2002). The presumption of regularity that attaches to a prosecutor’s

decision to seek an indictment can be overcome only by “clear

evidence to the contrary.” United States v . Armstrong, 517 U.S.

456, 464 (1996) quoting United States v . Chem. Found., Inc., 272

U.S. 1 , 14-15 (1926). Swan has failed to produce clear evidence

to support either aspect of his vindictive prosecution defense.

Swan cites the government’s alleged failure to prosecute

Irwin Schiff and his followers to support his contention that the

government has failed to prosecute other “similarly situated”

individuals. This argument fails for two reasons. First, Swan

concedes that the government is engaged in an ongoing criminal

investigation of Schiff. The fact that the investigation has not

yet concluded in an indictment hardly demonstrates that the

government has refused to prosecute other alleged tax evaders.

In any event, Swan has failed to demonstrate that he is similarly

situated to Schiff or any of his followers who have not yet been

prosecuted. As the government notes, the grand jury found

probable cause to believe that Swan prepared hundreds of false

tax returns for other individuals for a fee. Swan has not

alleged that either Schiff or any of the other individuals he

2 cites actively assisted others in preparing false tax returns for

a fee.

Swan has also failed to demonstrate that the government is

prosecuting him for an improper reason. He claims that the

government decided to prosecute him because he has made

statements in internet chat rooms, in letters to the editors of

local newspapers and elsewhere suggesting that Israel and certain

United States government officials were responsible for the

terrorist attacks of September 1 1 , 2001. He concedes, however,

that the government instituted its criminal investigation of him

well prior to September 1 1 , 2001, and long before he made any of

the statements which he claims prompted the government’s decision

to prosecute him. Further, he has produced no evidence to

support his claim that the government officials who authorized

his prosecution did so because of his views rather than his

allegedly illegal actions. The presumption of regularity that

attaches to a prosecutor’s decision to seek an indictment cannot

be overcome merely by demonstrating that the subject of an

indictment holds views that many people, including prosecutors,

would find repugnant.

3 Swan’s motion to reconsider (doc. n o . 76) is denied.

SO ORDERED.

Paul Barbadoro Chief Judge

December 1 2 , 2003

cc: Steven A . Swan, pro se Michael Shklar, Esq. William Morse, AUSA United States Probation United States Marshal