11-2613-cr
United States v. Tillman
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 30th day of May, two thousand twelve.
PRESENT: RALPH K. WINTER,
JOSEPH M. McLAUGHLIN,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
11-2613-cr
-v.-
DONNA TILLMAN,
Defendant-Appellant.
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FOR APPELLEE: MATTHEW L. SCHWARTZ, Assistant
United States Attorney (Katherine
Polk Failla, Assistant United
States Attorney, on the brief), for
Preet Bharara, United States
Attorney for the Southern District
of New York, New York, New York.
FOR DEFENDANT-APPELLANT: BETH M. FARBER, New York, New York.
Appeal from a judgment of the United States District
Court for the Southern District of New York (Sweet, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Following a jury trial, defendant-appellant Donna
Tillman was convicted on three counts of making false statements
in connection with applications for federal worker's compensation
and federally funded food stamps, in violation of 18 U.S.C. §§
1920 and 1001(a)(2). On June 27, 2011, Tillman was sentenced
principally to a term of imprisonment of a year and a day. We
assume the parties' familiarity with the underlying facts, the
procedural history, and the issues presented for review.
On May 21, 2010, Tillman moved in the district court to
dismiss the indictment for prosecutorial vindictiveness.
Tillman contended that the government charged her in this case in
retaliation for her request for a probationary sentence in an
earlier money laundering case. On July 30, 2010, the district
court denied Tillman's motion in a thorough, carefully
considered, twenty-three-page decision. See United States v.
Tillman, No. 10 Cr. 127, 2010 WL 3000189 (S.D.N.Y. July 30,
2010). The sole issue on appeal is Tillman's contention that the
district court erred in denying her motion to dismiss.
Upon de novo review of the legal principles guiding the
district court and clear error review of the district court's
factual findings, we conclude that the district court did not err
in denying Tillman's motion to dismiss. See United States v.
Johnson, 171 F.3d 139, 140 (2d Cir. 1999) (per curiam). As the
district court found, the government "provided a clear
explanation of its prosecution [in this case] sufficient to rebut
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the presumption of vindictiveness raised by [Tillman's] claims."
Tillman, 2010 WL 3000189, at *6; see United States v. King, 126
F.3d 394, 399 (2d Cir. 1997) ("A presumption of vindictiveness
may be rebutted with a showing of legitimate, articulable,
objective reasons for the [indictment].") (internal quotation
marks omitted).
We have considered Tillman's remaining arguments and
find them to be without merit. Accordingly, we hereby AFFIRM the
judgment of the district court.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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