United States v. Rodella (59 F. Supp. 3d 1331, 2014)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) Defendant Thomas R. Rodella’s Motion to Disqualify the U.S. Attorney’s Office for the District of New Mexico, the Prosecutor in This Case, by Virtue of the U.S. Attorney Damon P. Martinez Being a Witness, filed September 4, 2014 (Doc. 37)(“Motion”); and (n) Defendant R. Ro-della’s Amended Motion to Disqualify the U.S. Attorney’s Office for the District of New Mexico, the Prosecutor in this Case, by Virtue of U.S. Attorney Damon P. Martinez Being a Witness, filed September 5, 2014 (Doc. 38)(“Amended Motion”). The Court held evidentiary hearings on September 15, 2014, and September 16, 2014. The primary issues are: (i) whether the United States Attorney for the District of New Mexico, Damon Martinez, may be compelled to testify when his testimony does not concern the facts underlying the case and when his testimony can be sought from other witnesses; (ii) whether the United States Attorney’s Office for the District of New Mexico should be disqualified from the case when Mr. Martinez may be biased against Defendant Thomas Ro-della; and (iii) whether the United States Attorney’s Office for the District of New Mexico should be disqualified from the case when Mr. Martinez may be called as a factual witness in the case. Because Mr. Martinez’ testimony is irrelevant to the case, and because Rodella may obtain evidence that is the subject of Mr. Martinez’ testimony from other sources, Mr. Martinez cannot be compelled to testify. Additionally, because a court should rarely — if ever — disqualify an entire United States Attorney’s Office, and because one attorney’s bias is not imputed to an entire government agency, the Court will not disqualify the United States Attorney’s Office for the District of New Mexico. Accordingly, the Court will deny the Motion and the Amended Motion.

FACTUAL BACKGROUND

The Superseding Indictment, filed September 9, 2014 (Doc. 55)(“Indictment”), alleges that on March 11, 2014, in Rio Arriba County, New Mexico, Rodella, while acting under color of state law, subjected a person — Michael Tafoya — to “unreasonable seizure by a law enforcement officer.” Indictment at 1. Specifically, Rodella allegedly used unreasonable force and caused an “unlawful arrest by deputies of the' Rio Arriba County Sheriffs Office.” Indictment at 1. “This offense resulted in bodily injuries]” to a person, and included the “use and threatened use of a dangerous weapon.” Indictment at 1. The Indictment further alleges that Rodella carried and brandished a firearm “during and in relation to a crime of violence for which the defendant may be prosecuted in a court of the United States,” and that, “in furtherance of such crime, possessed and brandished said firearm.” Indictment at 1-2.

Before the Grand Jury indicted Rodella, Mr. Martinez invited Rodella to a meeting on May 7, 2014, to discuss the relationship between the United States Forest Service (“Forest Service”) and the Rio Arriba Sheriffs Office. See Amended Motion at 2; Affidavit of Jean-Claude dei Fiori Arnold at 1-2, filed September 5, 2014 (Doc. 38-l)(“Arnold Aff.”). The discussions were to concern Forest Service special agents’ assertions that they had authority to stop motorists outside of national forest lands and Rodella’s refusal to deputize them as Rio Arriba County deputy sheriffs. See Amended Motion at 2. At the meeting, Rodella and five other individuals represented the Rio Arriba Sherriff Office; Mr. Martinez, along with several Assistant United States Attorneys (“AUSAs”), Forest Service attorneys, and Forest Service law enforcement officers, represented the Forest Service. Arnold Aff. at 3. Mr. Martinez requested that the meeting remain confidential and that no recordings be made. See Arnold Aff. at 3. During the meeting, Mr. Martinez threatened “Sheriff Rodella with arrest/prosecution if the sheriff or any of his deputies in any way interfered with any [Forest Service] law enforcement officer carrying] out his/her supposed legitimate mission anywhere in Rio Arriba County.” Arnold Aff. at 4. In making this threat, Mr. Martinez “chastised the sheriff for challenging the authority and practices of [Forest Service] law enforcement personnel and, by doing so, fomenting unrest among the citizenry of the sheriffs jurisdiction.” Arnold Aff. at 4.

PROCEDURAL BACKGROUND

On September 4, 2014, Rodella filed the Motion to disqualify the United District Attorney’s Office for the District of New Mexico, and on September 5, 2014, he filed the Amended Motion. See Motion at 1; Amended Motion at 1. A week later, on September 12, 2014, the United States filed the Response to Motion to Disqualify the U.S. Attorney’s Office, filed September 12, 2014 (Doc. 76)(“Response”). The Court held evidentiary hearings on September 15, 2014, and September 16, 2014.

1. The Briefs.

Rodella asserts that he will call Mr. Martinez “as a witness at trial to elicit his confession that he threatened Mr. Rodella with arrest and prosecution.” Amended Motion at 2. Rodella argues that this “testimony is relevant to demonstrate the improper motive and bias of U.S. Attorney Martinez because personal animosity between a prosecutor and a criminal defendant may be probative of an improper motive by the prosecutor.” Amended Motion at 2. Rodella contends that a “United States Attorney can be disqualified from prosecuting a case if he or she has a personal or political relationship to a case.” Amended Motion at 3 (citing 28 C.F.R. § 45.2). Rodella argues that the “disqualification of government counsel ... has been allowed in certain circumstances particularly where there is a conflict of interest,” and that “ ‘the district court must make attorney-specific findings and legal conclusions before disqualifying attorneys from. the USA’s office.’ ” Amended Motion at 3 (quoting United States v. Bolden, 353 F.3d 870, 879 (10th Cir.2003)). Rodella contends that, because Mr. Martinez “has a personal and political relationship to this case,” and because he “personally threatened arrest and prosecution if Mr. Rodella did not comply with his demands to deputize federal law enforcement agents as Rio Arriba County deputy sheriffs,” Mr. Martinez has been placed “squarely in the middle of the underlying conduct in this case, and he has a specific interest in prosecuting Mr. Rodella in order to remove him as sheriff.” Amended Motion at 4.

Rodella argues that the Court has “absolute discretion to permit a defendant to call the prosecutor as a witness if the prosecutor ‘possesses information vital to the defense.’ ” Amended Motion at 4 (quoting United States v. Wooten, 377 F.3d 1134, 1143 (10th Cir.2004)). Rodella notes that, to “call a prosecutor as a witness in his case, ‘a defendant has an obligation to exhaust other available sources of evidence before a court should sustain efforts to call a participating prosecutor as a witness.’ ” Amended Motion at 4 (quoting United States v. Prantil, 764 F.2d 548, 551 (9th Cir.1985) (“Prantil ”)). Rodella directs the Court to United States v. Troutman, 814 F.2d 1428 (10th Cir.1987), where, Ro-della argues, the United States Court of Appeals for the Tenth Circuit upheld a district court’s denial of a defendant’s motion to disqualify the New Mexico Attorney General and the Deputy Attorney General, who were approved “to act as Special Assistant United State[s] Attorneys for the prosecution of criminal charges,” because there were a number of other potential witnesses who could provide testimony of the relevant meeting and correspondence. Amended Motion at 5 (citing United States v. Troutman, 814 F.2d at 1439-40). Rodella argues that this case is more similar to the United States Court of Appeals for the Ninth Circuit’s case, Prantil. See Amended Motion at 6. Rodella contends that, in Prantil, the defendant sought to call as a witness an AUSA, who had negotiated directly with the defendant for his surrender. See Amended Motion at 6. Rodella argues that the Ninth Circuit reversed the district court’s refusal to permit the AUSA to testify, because the “testimony was not duplicative” and “the defendant had shown a compelling need to call the participating prosecutor as a witness.” Amended Motion at 6. Rodella contends that Mr. Martinez was a direct participant in the meeting with Rodella and that Mr. Martinez “directly threatened Sheriff Rodella with arrest and prosecution, a threat which he later made good on.” Amended Motion at 6. Rodella argues that Mr. Martinez is “a vital witness -as he is the one who made these direct threats” and that, “although there were other individuals present, the rules of evidence do not allow the other witnesses to testify to statements made by” Mr. Martinez. Amended Motion at 6-7. Rodella argues that Mr. Martinez “should be disqualified from the prosecution of this case so that he may be called as a witness at trial.” Amended Motion at 7.

Rodella contends that, because Mr. Martinez is a “vital witness to the defense’s case,” the “disqualification of the entire United States Attorney’s Office is warranted in this case.” Amended Motion at 9. Rodella refers the Court to 28 U.S.C. § 541 to argue that, because Mr. Martinez “is the U.S. Attorney, all Assistant United States Attorneys work under his authority and control.” Amended Motion at 9. Ro-della argues that, because Mr. Martinez “will be called as a witness at trial,” he “cannot also prosecute this case.” Amended Motion at 9-10. Rodella contends that “disqualifying only U.S. Attorney Martinez does not cure the substantial conflicts of interest that exist in this case.” Amended Motion at 9-10. Rodella maintains that there is no other attorney in the United States. Attorney’s Office for the District of New Mexico that “could prosecute the case without being subject to the authority and control of U.S. Attorney Martinez.” Amended Motion at 10. Rodella contends that, because the job of the entire United States Attorney’s Office for the District of New Mexico is to assist Mr. Martinez “in the prosecution of cases” and because Mr. Martinez “remains the supervisor of the Assistant United States Attorneys assigned to this case,” the “entire office in this case is affected by U.S. Attorney Martinez’ bias and motive.” Amended Motion at 10. Rodella argues that a “separation of powers concern in this case is not sufficient to eliminate the conflict of interest,” and that the “remedy is simple — order the recusal of the U.S. Attorney’s Office for the District of New Mexico and have the Department of Justice appoint a different U.S. Attorney to independently prosecute this case.” Amended Motion at 10.

Rodella attached to the Amended Motion an affidavit from Jake Arnold. See Arnold Aff. at 1. Arnold served as the Public Affairs Officer of the Rio Arriba Sheriffs Office from January 1, 2011, to August 5, 2014. See Arnold Aff. at 1. In his affidavit, Arnold describes the May 7, 2014, meeting between Rodella and Mr. Martinez and the threat that Mr. Martinez made to Rodella. See Arnold Aff. at 1-4.

The United States responds by arguing that the Amended Motion is “baseless at its core because the charges against Defendant have precisely nothing to do with the U.S. Forest Service.” Response at 1. The United States contends that no evi-dentiary hearing is neeessary, because Ro-della “has failed to show animus, has misrepresented his own affidavit, and cannot show a valid need to call USA Martinez to testify.” Response at 1.

First, the United States argues that Ro-della has misrepresented Arnold’s affidavit, which is attached to the Amended Motion. See Response at 1-3. The United States notes that Arnold’s Affidavit states: “ ‘Damon Martinez did threaten Sheriff Rodella with arrest/prosecution if the sheriff or any of his deputies in any way interfered with any USFS law enforcement officer carrying] out his/her supposed legitimate mission anywhere in Rio Arriba County.’ ” Response at 1 (quoting Arnold Aff. at 4). The United States argues that “interfering with a federal officer engaged in official duties is in fact a federal crime.” Response at 1-2 (citing 18 U.S.C. § 111). The United States equates Mr. Martinez’ statement to the slogan: “You Drink, You Drive, You Lose.” Response at 2. The United States contends that there is no evidence of animus, and that Rodella’s evidence does nothing to “support!] the concept that USA Martinez’s interest in this case is anything other than the completely appropriate interest which a United States Attorney does and should have in prosecuting violations of federal law.” Response at 2 (citing United States v. Mezzanatto, 513 U.S. 196, 209-10, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995)). The United States argues that Rodella’s contention that Mr. Martinez threatened prosecution if Rodella did not deputize federal agents is contrary to and mischaracterizes Arnold’s affidavit, which states that Mr. Martinez threatened prosecution if Rodella violated federal law. See Response at 2. The United States also addresses Rodella’s contention that Mr. Martinez “trumped up” charges against Rodella to remove him from office, by arguing that Rodella lost the Democratic Party primary election on June 3, 2014, which was more than two months before the Indictment was filed. See Response at 3. '

Second, the United States argues that Mr. Martinez will not be a witness at trial. See Response at 3-6. The United States contends that a prosecutor’s motives are not admissible evidence at trial, because they are not relevant to any element of a claim or defense, they would confuse the jury, and they are more prejudicial than probative. See Response at 3 (citing Fed.R.Evid. 401, 402, & 403). The United States notes that the grand jury found probable cause to believe that the Indictment was true and argues that this “fact alone should be conclusive on this matter.” Response at 3-4 (citing Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)). The United States contends that prosecutors “may exercise some selectivity in enforcement ... so long as ‘the selection was not deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” Response at 4 (quoting Bordenkircher v. Hayes, 434 U.S. at 364, 98 S.Ct. 663). The United States argues that, without an allegation that the prosecution is based on race, religion, or another arbitrary classification, a prosecutor’s decision whether to prosecute a case is not subject to judicial review. See Response at 4 (quoting Wayte v. United States, 470 U.S. 598, 607-08, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)). The United States contends that a prosecutor’s state of mind encompasses all of a defendant’s misdeeds, “including those that otherwise would be kept from the jury at trial; and in this case, there are plenty.” Response at 4.

The United States notes that Rodella has not cited a case, statute, or rule that would cause Mr. Martinez’ meeting to be admitted into evidence to show Mr. Martinez’ motive in prosecuting the ease. See Response at 4. The United States maintains that Mr. Martinez cannot provide any testimony that concerns Rodella’s guilt or innocence, because Mr. Martinez was not involved in the conduct underlying the case — the conduct described in the Indictment. See Response at 5. The United States differentiates Prantil, by arguing that, in Prantil, the AUSA, who should have testified, was the same person to whom the defendant made the false statement for which he was charged. See Response at 5 (citing Prantil, 764 F.2d at 548). The United States contends that, in Prantil, the prosecutor was involved in the underlying conduct of the case, and that there was no such involvement here. See Response at 5.

The United States maintains that there are substantial government interests weighing against allowing Rodella to call Mr. Martinez as a witness. See Response at 5. The United States contends that the Tenth Circuit has held that prosecutors should generally not be allowed to testify, because, if they testify, they might be disqualified, which would be inefficient and disruptive to the prosecution of criminal cases. See Response at 5-6 (citing United States v. Wooten, 377 F.3d at 1142). The United States notes that Rodella concedes that a prosecutor may not be called as a witness if other witnesses are available who can provide the same testimony. See Response at 6 (citing United States v. Troutman, 814 F.2d at 1439-40). The United States argues that Rodella identified six other witnesses who can testify about Mr. Martinez’ statements. See Response at 6. The United States addresses Rodella’s contention that the other witnesses could not testify about Mr. Martinez’ statements, because the Federal Rules of Evidence would not allow them, by arguing that no evidentiary rule prohibits the other witnesses from testifying, because the testimony would not be inadmissible hearsay if Mr. Martinez’ statements were not offered for the truth of the matter asserted. See Response at 6.

Finally, the United States argues that it would be inappropriate to disqualify the entire United States Attorney’s Office. See Response at 7-8. The United States argues that Rodella has failed to show an actual conflict of interest or a need to present Mr. Martinez’ testimony at trial, which are the only potential bases for disqualification. See Response at 7. The United States contends that Department of Justice regulations do not support disqualification, because Rodella has asserted only a single incident of political disagreement, and the regulations state that they are “ ‘not- intended to create rights enforceable by private individuals or organizations.’ ” Response at 7 (quoting 28 C.F.R. § 45.2)(citing United States v. Vega, 317 F.Supp.2d 599, 604 (D.Vi.2004)). The United States notes that Rodella has conceded “that numerous opinions find that disqualification of an entire U.S. Attorney’s Office is an extraordinary and drastic measure.” Response at 7 (citing United States v. Bolden, 353 F.3d at 879; Crocker v. Durkin, 159 F.Supp.2d 1258, 1284 (D.Kan.2001) (Murguia, J.); Bullock v. Carver, 910 F.Supp. 551, 559 (D.Utah 1995) (Boyce, M.J.)). The United States asserts that a district court’s order disqualifying an entire United States Attorney’s Office has never been upheld on appeal. See Response at 7. The United States contends that the Tenth Circuit has warned that “ ‘disqualifying an entire United States Attorney’s Office is almost always reversible error regardless of the underlying merits of the case.’ ” Response at 7 (quoting United States v. Bolden, 353 F.3d at 876).

2. The September IS, 2014, and September 16, 2014, Evidentiary Hearings.

The Court held evidentiary hearings on September 15, 2014, and September 16, 2014. At the hearings, Rodella called Sergeant Kenneth Olson of the New Mexico State Police to testify. See Transcript of Evidentiary Hearing at 3:19-4:10 (taken September 15, 2014)(“Sept. 15, 2014, Tr.”)(Gorence). Rodella called Olson to testify, because there were two police reports released that concerned the incident underlying the Indictment. See Sept. 15, 2014, Tr. at 7:24-8:7 (Gorence). The first report alleged simple assault, which is a petty misdemeanor, while the second report alleged battery, aggravated assault with a deadly weapon, and false imprisonment, which are felonies. See Sept. 15, 2014, Tr. at 8:5-18 (Gorence). Rodella asserted that Olson’s signature is on the reports, and Rodella argued that changing the original report to add the additional charges violated state police policies. See Sept. 15, 2014, Tr. at 8:4-13 (Gorence). Rodella contended that the report was changed at the bequest of Olson’s supervisors, by a directive from Mr. Martinez, or by a request from the Federal Bureau of Investigation (“FBI”). See Sept. 15, 2014, Tr. at 8:22-9:1 (Gorence). Rodella argued that, if Mr. Martinez directed the report be changed, then it shows that Mr. Martinez carried out his threat against Rodella and falsified records in the process. See Sept. 15, 2014, Tr. at 9:1-11 (Gorence). Rodella also argued that, if the United States Attorney’s Office ordered the report be changed, then this change shows a motive and bias against Rodella, which he is entitled to prove at trial by calling Mr. Martinez to testify. See Sept. 15, 2014, Tr. at 71:19-24 (Gorence).

Olson testified that he supervises New Mexico State Patrolmen in Española, Rio Arriba County, parts of Santa Fe, New Mexico, and parts of Taos, New Mexico. See Sept. 15, 2014, Tr. at 5:13-28 (Gorence, Olson). In March, 2014, Patrolman Orlando Sanchez was one of the officers whom Olson supervised. See Sept. 15, 2014, Tr. at 5:24-6:15 (Gorenee, Olson). Sanchez investigated the complaint that Tafoya made against Rodella. See Sept. 15, 2014, Tr. at 6:22-7:10 (Gorenee, Olson). Sanchez made a report of the incident, which Olson approved. See Sept. 15, 2014, Tr. at 7:11-14 (Gorenee, Olson). Olson testified that patrolmen make police reports, then the sergeant signs-off on the reports, and finally the lieutenant reviews the reports for errors. See Sept. 15, 2014, Tr. at 19:12-16 (Olson). Olson approved Sanchez’ report on June 6, 2014, but he testified that the report was not final until his supervisors signed-off on it. See Sept. 15, 2014, Tr. at 10:22-11:8 (Gorenee, Olson). The original report stated that the investigation was for a simple assault. See Sept. 15, 2014, Tr. at 11:19-12:2 (Gorenee, Olson). Olson’s supervisor amended the report to include allegations of battery, aggravated assault with a deadly weapon, and false imprisonment. See Sept. 15, 2014, Tr. at 13:10-19 (Gorenee, Olson); id. at 14:25-15:3 (Olson). Olson testified that his supervisor, Lieutenant Travis Skinner, determined that there were errors in the original report and that the charges did not fit the allegations; so the charges in the report were changed. See Sept. 15, 2014, Tr. at 19:14— 20:9 (Olson). Olson testified that he added the additional charges to the report at' Skinner’s direction. See Sept. 15, 2014, Tr. at 20:25-22:6 (Gorenee, Olson). Olson also talked to Skinner’s supervisor, Captain Robert Thornton, about changing the report. See Sept. 15, 2014, Tr. at 24:6-27:11 (Gorenee, Olson). While it is not clear when Olson amended the report, he believes it was on June 6, 2014, because that is the date listed on the report, but he is not sure because of the large number of reports that he reviews daily. See Sept. 15, 2014, Tr. at 14:15-22 (Gorenee, Olson); id. at 20:16-24 (Gorenee, Olson); id. at 23:4-24:2 (Gorenee, Olson). Olson testified that, if the report had been changed on a later date, he should have changed the date on the report but that he did not. See Sept. 15, 2014, Tr. at 36:14-37:13 (Go-rence, Olson).

Olson testified that he had no reason to believe that the changes to the report came from the FBI or the United States Attorney’s Office. See Sept. 15, 2014, Tr. at 28:4-20 (Gorenee, Olson). Olson testified that the changes were not supplemental to the original report, but instead were merely correcting errors in the original report. See Sept. 15, 2014, Tr. at 33:5-34:18 (Gorenee, Olson). When Olson signed off on the original report, he believed that the simple assault charge was correct, see Sept. 15, 2014, Tr. at 22:15-19 (Gorenee, Olson), but testified that he also thought that the facts support the three additional charges that were added later, see Sept. 15, 2014, Tr. at 38:19-24 (Peña, Olson). Olson also testified that Sanchez did not sign the report, but that he wrote Sanchez’ initials on the report, which is his normal practice for when the patrolman, who prepared a report, is not available to sign it. See Sept. 15, 2014, Tr. at 10:9-21 (Gorenee, Olson).

Rodella also called Sanchez to testify. See Sept. 15, 2014, Tr. at 44:10-11 (Go-rence). Sanchez testified that he was assigned to the Tafoya case because he was on call when Tafoya reported the incident, and he was the next patrolman in the rotation to be assigned a case. See Sept. 15, 2014, Tr. at 46:14-25 (Gorenee, Sanchez). Sanchez alleged simple assault in his original report after talking to Thornton about the investigation. See Sept. 15, 2014, Tr. at 48:4-12 (Gorenee, Sanchez). Sanchez testified that Thornton told him to label the report as an informational report and let the District Attorney decide whether to add more charges. See Sept. 15, 2014, Tr. at 49:13-18 (Sanchez). Sanchez testified that he signed the report when he turned it into Olson and that he always signs his name on reports that he gives to Olson. See Sept. 15, 2014, Tr. at 51:16-21 (Gorence, Sanchez). After Sanchez turned the report into Olson, Olson told him that he needed to change the assault charge to a battery charge. See Sept. 15, 2014, Tr. at 54:20-23 (Sanchez). Sanchez testified that Olson told him to change the report on June 9, 2014. See Sept. 15, 2014, Tr. at 59:22-25 (Gorence, Sanchez). Sanchez testified that he had never seen a police report changed in the manner that this report was changed. See Sept. 15, 2014, Tr. at 60:15-61:7 (Gorence, Sanchez). After the report was changed to add the additional charges, Sanchez did not sign it. See Sept. 15, 2014, Tr. at 63:16-64:3 (Go-rence, Sanchez). Sanchez believed that once he turned in his report and Olson approved it, it could not be changed except through supplementing it or through showing some reason why the report needed to be changed. See Sept. 15, 2014, Tr. at 68:11-20 (Gorence, Sanchez).

Rodella called the Chief of the New Mexico State Police, Pete Kassetas, to testify. See Transcript of Evidentiary Hearing at 135:3-9 (taken September 16, 2014)(“Sept. 16, 2014, Tr.”)(Gorence, Kassetas, Clerk). Kassetas testified that he reviewed Sanchez’- report and made some grammatical changes, but that he did not add the additional charges. See Sept. 16, 2014, Tr. at 138:4-12 (Gorence, Kasse-tas); id. at 139:24-140:13 (Gorence, Kasse-tas). Kassetas recalled that he asked to review the report after seeing a news story about the incident. See 145:5-10 (Gorence, Kassetas). Kassetas testified that he expected that the FBI would request a copy of the report, so he reviewed it to ensure that it had all of the necessary information, and that, after the report was finalized, he reached out to the FBI to see if they wanted to see the New Mexico State Police’s case file on the incident. See Sept. 16, 2014, Tr. at 146:13-18 (Kassetas); id. at 147:19-24 (Gorence, Kassetas). Kasse-tas has talked to the FBI about the case, but not before Sanchez’ report was finalized. See Sept. 16, 2014, Tr. at 145:11-146:10 (Gorence, Kassetas). Kassetas testified that neither the FBI nor the United States Attorney’s Office was involved in changing the charges in Sanchez’ report. See Sept. 16, 2014, Tr. at 154:16-21 (Go-rence, Kassetas).

Rodella also called Thornton to testify. See Sept. 16, 2014, Tr. at 195:13-20 (Go-rence, Thornton, Clerk, Court). Thornton testified that, after Olson looked at the report, he also examined it. See Sept. 16, 2014, Tr. at 195:7-15 (Gorence, Thornton). Thornton testified that he has not communicated with the FBI or the United States Attorney’s Office in connection with the case. See Sept. 16, 2014, Tr. at 196:14-18 (Gorence, Thornton). Thornton testified that he was the person who made the decision tó change the misdemeanor assault charge to felonies. See Sept. 16, 2014, Tr. at 198:3-12 (Gorence, Thornton). Thornton noted that Kassetas had reviewed the report but that Kassetas had not indicated to him whether the charges in the report should be changed. See Sept. 16, 2014, Tr. at 198:24-199:15 (Go-rence, Thornton). Thornton.testified that the original report, which charged only a simple assault, was not a final report, because it needed to be changed. See Sept. 16, 2014, Tr. at 203:10-15 (Thornton).

After hearing the testimony from Olson, Sanchez, Kassetas, and Thornton, Rodella conceded that there was no evidence that the FBI or the United States Attorney’s Office requested that the police report be changed, and he withdrew the portion of his Motion to Disqualify that alleged that Sanchez’ police report was changed at the FBI’s behest or at the request of the United States Attorney’s Office. See Sept. 16, 2014, Tr. at 205:14-24 (Gorence).

Rodella also called Arnold to testify. See Sept. 15, 2014, Tr. at 77:5 (Gorence). Arnold served as the Public Affairs Officer of the Rio Arriba Sheriffs Office for three and a half years. See Sept. 15, 2014, Tr. at 78:1-9 (Gorence, Arnold). Arnold testified about the May 7, '2014, meeting, which he discussed in his affidavit. See Sept. 15, 2014, Tr. at 84:17-85:11 (Gorence, Arnold). Rodella tasked Arnold with arranging the meeting. See Sept. 15, 2014, Tr. at 85:5-11 (Arnold). Arnold thought that, from Rodella’s perspective, the issues at the meeting were: (i) whether Rodella should deputize Forest Service officers; (ii) whether Forest Service officers could stop people outside the boundaries of the national forest; and (iii) whether Forest Service officers could give citations to people within the boundaries of the national forest for state law violations, but prosecute the violations in federal court. See Sept. 15, 2014, Tr. at 86:9-87:11 (Arnold).

Arnold testified that Rodella, Rodella’s wife, and a former county commissioner were present at the meeting and that two other people from Rio Arriba County appeared telephonically. See Sept. 15, 2014, Tr. at 87:18-24 (Arnold). Arnold testified that there were also a number of people at the meeting on behalf of the Forest Service, including Mr. Martinez, an AUSA, other federal attorneys, and Forest Service officers. See Sept. 15, 2014, Tr. at 88:4-15 (Gorence, Arnold). Arnold testified that the meeting did not end cordially, but instead ended with Mr. Martinez threatening Rodella. See Sept. 15, 2014, Tr. at 88:22-89:11 (Gorence, Arnold). Arnold later testified that the meeting ended politely, but that there was tension in the room. See Sept. 15, 2014, Tr. at 96:17-97:3 (Peña, Arnold). Arnold characterized Mr. Martinez’ threat as follows:

A. That the sheriff had better toe the line he better not do anything to interfere with the United States Forest Service officers, or there were going to be some severe consequences.

A. I think he said that there might be ... arrests and prosecutions coming from any interference ... with U.S. Forest Service law enforcement officers. I’m not sure that that was subsequently just to sheriff Rodella but it was to anybody up in Rio Arriba [C]ounty that might try to interfere with the U.S. Forest Service officers.

Sept. 15, 2014, Tr. at 89:14-90:1 (Gorence, Arnold). Arnold believed that the interference that Mr. Martinez mentioned had to do with interfering with Forest Service officers stopping people outside the boundaries of the national forest without reasonable suspicion or probable cause, because that was what they had been discussing earlier in the meeting. See Sept. 15, 2014, Tr. at 93:7-16 (Peña, Arnold). Arnold did not remember the threat being tied to an agreement to deputize Forest Service officers. See Sept. 15, 2014, Tr. at 94:5-95:19 (Peña, Arnold); id. at 96:10-16 (Peña, Arnold). Rodella, however, had been adamant, since 2011, that he would not deputize the Forest Service officers, and Mr. Martinez made the threat of arrest and prosecution shortly after Rodella stated that he would not deputize the Forest Service Agents. See Sept. 15, 2014, Tr. at 100:12-101:7 (Gorence, Arnold); id. at 102:24-103:3 (Gorence, Arnold).

Rodella argued that he is entitled to call Mr. Martinez as a witness at trial. See Sept. 15, 2014, Tr. at 105:17-20 (Gorence). Rodella argued that he has a right under the Sixth Amendment to the Constitution of the United States of America to call witnesses, which includes calling Mr. Martinez as a witness. See Sept. 15, 2014, Tr. at 107:12-15 (Gorence). Rodella argued that his counsel had previously called both an AUSA as a witness and, in a state court case, a United States Attorney as a witness. See Sept. 15, 2014, Tr. at 105:22-106:2 (Gorence). Rodella argued that a person cannot be both the prosecutor and a witness in the same proceeding. See Sept. 15, 2014, Tr. at 106:2-5 (Gorence). Rodella argued that, if Mr. Martinez is a witness in the case, then the entire United States Attorney’s Officer for the District of New Mexico cannot prosecute the case, because every local AUSA derives his or her authority from Mr. Martinez. See Sept. 15, 2014, Tr. at 106:13-21 (Gorence). Rodella noted that the remedy would not be to dismiss the Indictment, but instead, would be to have a different United States Attorney’s Office prosecute the case. See Sept. 15, 2014, Tr. at 106:23-107:9 (Go-rence).

Rodella further argued that, because a federal statute prohibits interfering with federal agents, does not mean that everything a federal agent does is immunized from all interference. See Sept. 16, 2014, Tr. at 207:2-8 (Gorence). Rodella argued that there is a legitimate issue whether Forest Service officers can cite individuals for state law infractions if the officers are not deputized. See Sept. 16, 2014, Tr. at 207:14-16 (Gorence). Rodella contended that Mr. Martinez threatening him with arrest, and then arresting him shortly af-terwards, creates the appearance of a conflict of interest. See Sept. 16, 2014, Tr. at 207:16-22 (Gorence). Rodella argued that the trial will be a political trial and that he will call Mr. Martinez to testify that he threatened Rodella. See Sept. 16, 2014, Tr. at 208:9-21 (Gorence). Rodella noted that the United States did not bring in any witnesses to refute his assertion that Mr. Martinez made the threat. See Sept. 16, 2014, Tr. at 208:21-209:1 (Gorence).

The United States responded by arguing that there is an enormous gap between what Arnold testified happened at the May 7, 2014, and what Rodella says happened at the meeting. See Sept. 16, 2014, Tr. at 209:22-25 (Peña). The United States argued, that Arnold testified, and swore in his affidavit, that Mr. Martinez said that, if Rodella got in the way of Forest Service business, then it would be a federal crime and that he would be subject to arrest and prosecution. See Sept. 16, 2014, Tr. at 210:1-6 (Peña). The United States contended that Rodella’s representation of Mr. Martinez’ statement would cause Mr. Martinez’ statement to be a federal crime — extortion—because Mr. Martinez told Rodella to do things his way or suffer the consequences. See Sept. 16, 2014, Tr. at 210:11-18 (Peña). The United States argued that this characterization is contrary to Arnold’s affidavit and testimony. See Sept. 16, 2014, Tr. at 210:18-20 (Peña). The United States maintained that the meeting was a normal meeting in which two agencies did not see eye-to-eye and nothing more. See Sept. 16, 2014, Tr. at 210:21-25 (Peña). The United States referred to the Response to argue that there are a significant number of factors that make courts reluctant to second-guess prosecutorial motives. See Sept. 16, 2014, Tr. at 210:25-211:7 (Peña).

Rodella replied by arguing that the United States mischaracterized the meeting, which Rodella contended was neither normal nor amicable. See Sept. 16, 2014, Tr. at 211:24-212:8 (Gorence). Rodella argued that a key issue at the meeting was whether Rodella should deputize federal agents, and that, when he refused to do so, the meeting stopped and Mr. Martinez threatened him. See Sept. 16, 2014, Tr. at 212:11-213:4 (Gorence). Rodella maintained that Mr. Martinez did not threaten to arrest Rodella if he arrested a Forest Service officer, but instead threatened to arrest Rodella if he interfered with what they were doing. See Sept. 16, 2014, Tr. at 213:5-10 (Gorence). Rodella argued that the United States conceded that Mr. Martinez threatened Rodella and that, when a public official, whom the President of the United States has appointed, threatens an elected state official, the context provides for a political trial, and that basis, alone, is sufficient to require recusal. See Sept. 16, 2014, Tr. at 213:20-214:3 (Gorence).

The Court then announced its ruling that it would not disqualify the United States Attorney’s Office for the District of New Mexico and that it would not permit Rodella to call Mr. Martinez as a witness. See Sept. 16, 2014, Tr. at 214:4-218:20 (Court).

LAW REGARDING CALLING PROSECUTORS AS WITNESSES

“The government has a substantial interest in not allowing its prosecutors to testify because doing so generally requires disqualification of the prosecutor.” United States v. Wooten, 377 F.3d at 1142 (citing ABA Model Rules of Prof'l Conduct R. 3.7 (“A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.... ”)). See United States v. Hasan, No. CR 05-0174 JHP, 2006 WL 1207737, at *2 (N.D.Okla. May 2, 2006) (Payne, J.). Disqualification of a prosecutor, who also testifies, is grounded in the longstanding “advocate-witness rule.” United States v. Bin Laden, 91 F.Supp.2d 600, 622-24 (S.D.N.Y.2000) (Sand, J.). See United States v. Manners, No. CR 05-0220 M, 2006 WL 3026110, at *2 (N.D.Tex. Oct. 25, 2006) (Lynn, J.). “The advocate-witness rule prohibits an attorney from appearing as both a witness and an advocate in the same litigation.” Prantil, 764 F.2d at 552-53. The Ninth Circuit has identified a number of policies that are served by applying the advocate-witness rule “in the context of a criminal prosecution.” Prantil, 764 F.2d at 553.

First, barring testimony by the participating prosecutor “eliminates the risk that a testifying prosecutor will not be a fully objective witness given his position as an advocate for the government.” United States v. Johnston, 690 F.2d 638, 643 (7th Cir.1982) (en banc). . Second, the rule prevents the prestige and prominence of the prosecutor’s office from being attributed to testimony by a testifying prosecutor. Id. See United States v. Cerone, 452 F.2d 274, 288 (7th Cir.1971) (prosecutor not disqualified as a witness under the “awesome office” theory so long as prosecutor does not otherwise participate in trial).... Third, the rule obviates the possibility of jury confusion from the dual role of the prosecutor wherein the trier-of-fact is asked to segregate the exhortations of the advocate from the testimonial accounts of the witness. United States v. Johnston, 690 F.2d at 643. Naturally, the potential for jury confusion is perhaps at its height during final argument when the prosecutor must marshall all the evidence, including his own testimony, cast it in a favorable light, and then urge the jury to accept the government’s claims. Hence there is a very real risk that the jury, faced with the exhortations of a witness, may accord testimonial credit to the prosecutor’s closing argument. Id. Finally, the rule expresses an institutional concern, especially pronounced when the government is a litigant, that public confidence in our criminal justice system not be eroded by even the appearance of impropriety. Id. See Model Code of Professional Responsibility EC 5-9, 5-10.

Prantil, 764 F.2d at 553.

The Tenth Circuit has held that a “district court may decline to allow the defendant to call the prosecutor as a witness ‘if it does not appear the prosecutor possesses information vital to the defense,’ ” because “[s]uch disqualifications would, of course, be tremendously inefficient and disruptive to the prosecution of criminal cases.” United States v. Wooten, 377 F.3d at 1142-43 (quoting United States v. Troutman, 814 F.2d at 1439). While a criminal defendant has a right under Sixth Amendment to “compulsory process for obtaining witnesses in his favor,” U.S. Const. amend. VI, which “‘includes the right to present witnesses in his or her own.defense,”’ this right is subject to restrictions, United States v. Wooten, 377 F.3d at 1142 (quoting United States v. Powell, 226 F.3d 1181, 1199 (10th Cir.2000)). These restrictions include a district court’s ability to exclude testimony if the testimony is' not relevant or if the United States’ “ ‘interest in excluding the evidence outweigh[s] the defendant’s interest in its admittance.’ ” United States v. Powell, 226 F.3d at 1199 (quoting Richmond v. Embry, 122 F.3d 866, 872 (10th Cir.1997)). The Tenth Circuit has held that the United States’ “substantial interest” in not allowing a prosecutor to testify outweighs a defendant’s interest in admitting the testimony unless the “ ‘prosecutor possesses information vital to the defense.’ ” United States v. Wooten, 377 F.3d at 1143 (quoting United States v. Troutman, 814 F.2d at 1439). Many courts have held that a prosecutor’s testimony is not vital to the defense, or there is no compelling need for the testimony — as some United States Courts of Appeals require, see, e.g., Prantil, 764 F.2d at 554 — if the defendant can obtain the evidence from another source, other than the prosecutor’s testimony, see, e.g., United States v. Wooten, 377 F.3d at 1143; United States v. Troutman, 814 F.2d at 1440; Prantil, 764 F.2d at 551 (“[A] defendant has an obligation to exhaust other available sources of evidence before a court should sustain a defendant’s efforts to call a participating prosecutor as a witness.”); United States v. Watson, 952 F.2d 982, 986 (8th Cir.1991), cited with approval by United States v. Wooten, 377 F.3d at 1143; United States v. Hasan, 2006 WL 1207737, at *2 (“As a general rule, where the evidence can be obtained through another witness courts have refused to allow the defendant to call the prosecutor.”); United States v. Bin Laden, 91 F.Supp.2d at 624 (“Because those third parties can testify as to everything that occurred during" those interviews, any need for [the prosecutors] to testify is quite limited.”); United States v. Campbell, No. CR 04-0424 RWS, 2005 WL 6436621, at *8 (N.D.Ga. Oct. 24, 2005) (Story, J.)(“[S]uch need tends not to exist where other witnesses are available to testify to the same subject....”); United States v. Manners, 2006 WL 3026110, at *2; United States v. Brothers, 856 F.Supp. 388, 391 (M.D.Tenn.1993) (Higgins, J.)(“In this case, there were many other investigating agents present ... who can testify to what occurred during the meetings.... Therefore, [the prosecutors] should not be compelled to testify.”).

In Prantil, the Ninth Circuit held that the district court erred by not compelling an AUSA, Charles Gorder, to testify. See 764 F.2d at 551. Gorder: (i) conducted an examination of the defendant before a Grand Jury, for which the defendant was charged with perjury; (ii) was involved in discussions with the defendant, during which he made false statements for which he was prosecuted; and (iii) negotiated with the defendant to surrender a fugitive, which the defendant was harboring and giving aid. See 764 F.2d at 551. The district court prohibited the defendant from subpoenaing Gorder as a witness and from substituting Gorder with another AUSA. See 764 F.2d at 552. The Ninth Circuit reversed this decision, holding that Gorder “was both a witness to and a participant in the factual events at issue”; that is, Gorder “was a witness to,' and indeed a participant in, some aspect of all of the events alleged in the indictment.” 764 F.2d at 551-52. The Ninth Circuit noted that a defendant must “exhaust other available sources of evidence before a court should sustain a defendant’s efforts to call a participating prosecutor as a witness,” but noted that the quantity and quality of the other available grounds must be taken into consideration. 764 F.2d at 551-52. The only other available witness to the statements made to Gorder was an FBI agent, who heard some, but not all of the conversations between the defendant and Gorder. See 764 F.2d at 552. The Ninth Circuit held that, because the defendant had a compelling need to call Gorder as a witness, the district court should have allowed the defendant to call him as a witness and should have disqualified him from prosecuting the case. See 764 F.2d at 554.

The Tenth Circuit has affirmed district courts’ refusals to call prosecutors as witnesses when the defendant could obtain evidence from another source. In United States v. Troutman, the defendant was convicted of extortion for trying to solicit political donations by awarding, or withholding, state contracts. See 814 F.2d at 1433-35. The United States appointed the New Mexico Attorney General and the Deputy Attorney General as Special AU-SAs to prosecute the case. See 814 F.2d at 1435. The defendant attempted to call the Attorney General as a witness to testify about the process of awarding state contracts and the circumstances surrounding the state contracts involved in the extortion allegations, but the district court did not allow him to so. See 814 F.2d at 1439. The Tenth Circuit affirmed the district court’s decision. See 814 F.2d at 1440. The Tenth Circuit held that that the Attorney General’s testimony “was not vital to the defense and could be obtained through other witnesses.” 814 F.2d at 1440. The Tenth Circuit noted that four individuals, who attended a meeting with the Attorney General that involved the state contracts, testified at trial, and, thus, the Attorney General’s testimony would “have been cumulative.” 814 F.2d at 1440. Accordingly, the testimony was not vital to the defense. See 814 F.2d at 1440.

In United States v. Wooten, the Tenth Circuit affirmed a district court’s decision to not compel a prosecutor to testify about his reasons for not prosecuting the defendant for a prior incident. See 377 F.3d at 1141-43. The prosecutor introduced at-trial, pursuant to rule 404(b) of the Federal . Rules of Evidence, evidence that the defendant had a history of violence towards the victim in the case. See 377 F.3d at 1141. This history of violence included an incident in which the defendant threatened the victim with a knife. See 377 F.3d at 1141. The defendant sought to introduce evidence that the prosecutor in his case previously made the decision to not prosecute him for the knife incident. See 377 F.3d at 1141. The district court gave the prosecutor a choice: either testify as a witness, and be disqualified from the case, or provide the defendant with all discovery materials regarding the knife incident and permit them to be introduced at trial. See 377 F.3d at 1141. The prosecutor chose the latter. See 377 F.3d at 1141. The discovery documents, which were introduced at trial, included a memorandum that stated that the prosecutor did not find sufficient probable cause to prosecute the defendant for the knife incident and that the allegations against the defendant, concerning the knife incident, were unfounded. See 377 F.3d at 1141. The Tenth Circuit affirmed the district court’s resolution of the issue by holding that because the memorandum was a sufficient substitute for the prosecutor’s testimony, and because of the prosecutor’s substantial interest in not being called as a witness, the district court did not abuse its discretion by not requiring the prosecutor to testify. See 377 F.3d at 1142-43.

LAW REGARDING DISQUALIFICATION OF A UNITED STATES ATTORNEY’S OFFICE

“ ‘The disqualification of Government counsel is a drastic measure and a court should hesitate to impose it except where necessary.’ ” United States v. Bolden, 353 F.3d at 878 (quoting Bullock v. Carver, 910 F.Supp. at 559). Courts that that have allowed for the disqualification of government attorneys do so only in “limited circumstances.” United States v. Bolden, 353 F.3d at 878 (citing Young v. United States, 481 U.S. 787, 807, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987) (finding an actual conflict of interest when prosecutor represented another party benefiting from case); United States v. Heldt, 668 F.2d 1238, 1275 (D.C.Cir.1981) (noting that prosecutor should be disqualified if the criminal defendant brought against the prosecutor a “bona fide civil action alleging bad faith in the performance of official duties”); Prantil, 764 F.2d at 552-53 (holding that prosecutor should have been disqualified when he was a witness in the trial)). However, “[disqualification of an entire United States Attorneys Office is nearly[] unprecedented.” United States v. Manna, Nos. CR 88-0239 DRD, CIV 97-2034 DRD, 2006 WL 3063456, at *8 (D.N.J. Oct. 25, 2006) (Debevoise, J.). “[E]very circuit court that has considered the disqualification of an entire United States Attorney’s office has reversed the disqualification.” United States v. Bolden, 353 F.3d at 879 (citing United States v. Whittaker, 268 F.3d 185 (3d Cir.2001); United States v. Vlahos, 33 F.3d 758 (7th Cir.1994); United States v. Caggiano, 660 F.2d 184 (6th Cir.1981)).

“While a private attorney’s conflict of interest may require disqualification of that attorney’s law firm in certain cases, such an approach is not favored when it comes to the office of the United States Attorney.” United States v. Hasarafally, 529 F.3d 125, 128 (2d Cir.2008) (citations omitted)(refusing to disqualify the Department of Justice even though the United States Attorney General had previously served as a United States district court judge, where he presided over a number of cases that the Department of Justice appealed, because the Attorney General had voluntarily recused himself from the cases over which he presided). “[BJecause disqualifying government attorneys implicates separation of powers issues, the generally accepted remedy is to disqualify ‘a specific Assistant United States Attorney ..., not all of the attorneys in’ the office.” United States v. Bolden, 353 F.3d at 879 (quoting Crocker v. Durkin, 159 F.Supp.2d at 1284) (alterations in United States v. Bolden but not in original). “[I]f the disqualification of one government attorney could serve as the predicate for the disqualification of the entire United States Attorney’s Office, the administration of justice would be irreparably damaged.” Grand Jury Subpoena of Ford v. United States, 756 F.2d 249, 254 (2d Cir.1985). The Tenth Circuit has stated that it can “only rarely — if ever — imagine a scenario in which a district court could properly disqualify an entire United States Attorney’s office,” and that “disqualifying an entire United States Attorney’s Office is almost always reversible error regardless of the underlying merits of the case.” United States v. Bolden, 353 F.3d at 875-76. The Tenth Circuit may have left open the possibility that an entire United States Attorney’s Office may be disqualified in certain situations by holding that a “district court must make attorney-specific factual findings and legal conclusions before disqualifying attorneys from the USA’s office.” United States v. Bolden, 353 F.3d at 880. The Tenth Circuit did not, however, state what findings and conclusions must be made to warrant the disqualification of an entire office. See United States v. Bolden, 353 F.3d at 880.

Courts have refused to disqualify entire United States Attorney’s Offices even in light of fairly extreme circumstances. In United States v. Morris, 313 Fed.Appx. 125 (10th Cir.2009) (unpublished), the Tenth Circuit refused to disqualify the United States Attorney’s Office for the Northern District of Oklahoma even though the United States Attorney for that district had previously served as private counsel in the civil case that accompanied the criminal one. See 313 Fed.Appx. at 131-32. The Tenth Circuit noted that the United States Attorney did not participate in the criminal case, but instead two other attorneys from his office, who were not connected with the civil case, prosecuted the criminal case. See 313 Fed.Appx. at 132. In Cope v. United States, 272 Fed.Appx. 445 (6th Cir.2008) (unpublished), the United States Court of Appeals for the Sixth Circuit held that the defendant’s counsel was not ineffective by not filing a motion to disqualify the United States Attorney’s Office for the Eastern District of Kentucky. See 272 Fed.Appx. at 449-50. There, the defendant was charged with attempting to murder an AUSA, who served in that United States Attorney’s Office. See 272 Fed.Appx. at 449-50. The Sixth Circuit held that, because the AUSA against whom the murder attempt was orchestrated, did not participate in the prosecution, and because of “the strong preference not to exclude an entire United States Attorney’s office from a case,” failing to file a motion to disqualify the office was not objectively unreasonable. 272 Fed.Appx. at 450.

Similarly, in United States v. Basciano, 763 F.Supp.2d 303 (E.D.N.Y.2011), the Honorable Nicholas G. Garaufis, United States District Judge for the Eastern District of New York, refused to disqualify the United States' Attorney’s Office for that district in a case in which the defendant was alleged to have solicited the murder of an AUSA from that office. See 763 F.Supp.2d at 312-14. The defendant argued that the United States Attorney’s Office had an “axe to grind with him,” and that the attorneys in the office showed an “untoward interest” in his case and were “overly zealous [in their] pursuit of the death penalty against him.” 763 F.Supp.2d at 312-13 (internal quotation marks omitted). Judge Garaufis refused to disqualify the office, noting that “an entire U.S. Attorney’s Office should only be disqualified, if ever, when special circumstances demonstrate that the interest of justice could only be advanced by this drastic remedy.” 763 F.Supp.2d at 314. Judge Garaufis found that no such special circumstances existed but instead found that the office did not possess “anything more than ‘the appropriate interest that members of society have in bringing a defendant to justice with respect to the crime with which he is charged.’ ” 763 F.Supp.2d at 314 (quoting Wright v. United States, 732 F.2d 1048, 1056 (2d Cir.1984)).

LAW REGARDING PROSECUTORIAL VINDICTIVENESS

A prosecutor has broad discretion to initiate and conduct criminal proceedings, see United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), and, as long as there is probable cause that the accused committed an offense, the decision to prosecute rests in the prosecutor’s discretion, see United States v. Vallo, 238 F.3d 1242, 1249 (10th Cir.2001). “A prosecutor cannot, however, punish a person simply because ‘he has done what the law plainly allows him to do.’ ” United States v. Neha, 376 F.Supp.2d 1230, 1232 (D.N.M.2005) (Browning, J.)(quoting United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)). “When a defendant exercises constitutional or statutory rights in the course of criminal proceedings, the government may not punish him for such exercise without violating due process guaranteed by the federal Constitution.” United States v. Raymer, 941 F.2d 1031, 1040 (10th Cir.1991). The defendant bears the burden of establishing either “(1) ‘actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness.’-” United States v. Sarracino, 340 F.3d 1148, 1177 (10th Cir.2003) (quoting United States v. Lampley, 127 F.3d 1231, 1245 (10th Cir.1997)). See United States v. Raymer, 941 F.2d at 1040.

To establish actual vindictiveness, the defendant must demonstrate: “(1) the prosecutor acted with genuine animus toward the defendant and (2)' the defendant would not have been prosecuted but for that animus.” United States v. Wilson, 262 F.3d 305, 314 (4th Cir.2001). “To find ‘actual vindictiveness requires direct evidence, such as evidence of a statement by the prosecutor, which is available only in a rare case.’ ” United States v. Johnson, 221 F.3d 83, 94 (2d Cir.2000) (quoting United States v. Johnson, 171 F.3d 139, 140 (2d Cir.1999))(internal quotation marks omitted). “‘To establish vindictive prosecution, a defendant must show that the prosecutor has some personal ‘stake’ in deterring the defendant’s exercise of his constitutional rights, and that the prosecutor’s conduct was unreasonable.’ ” United States v. Wade, 266 F.3d 574, 585 (6th Cir.2001) (quoting United States v. Wells, 211 F.3d 988, 1001-02 (6th Cir.2000)). Because an actual vindictiveness contention requires objective evidence that the prosecutor’s actions were designed to punish the defendant for asserting his legal rights, such allegations are “exceedingly difficult” to establish. United States v. Gary, 291 F.3d 30, 34 (D.C.Cir.2002) (quoting Maddox v. Elzie, 238 F.3d 437, 446 (D.C.Cir.2001)) (internal quotation marks omitted).

The Supreme Court of the United States of America has held that there was no presumption of vindictiveness when a prosecutor made threats during plea negotiations, see Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), or when additional charges were filed after the defendant requested a jury trial, see United States v. Goodwin, 457 U.S. at 384, 102 S.Ct. 2485. In United States v. Goodwin, the Supreme Court explained:

There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor’s assessment of the proper extent of prosecution may not have crystallized....

In addition, a defendant before trial is expected to invoke procedural rights that inevitably impose some “burden” on the prosecutor. Defense counsel routinely file pretrial motions to suppress evidence; to challenge the sufficiency and form of an indictment; to plead an affirmative defense; to request psychiatric services; to obtain access to government files; to be tried by jury. It is unrealistic to assume that a prosecutor’s probable response to such motions is to seek to penalize and to deter. The invocation of procedural rights is an integral part of the adversary process in which our criminal justice system operates.

A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct. As we made clear in Bordenkircher, the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.

457 U.S. at 381-82, 102 S.Ct. 2485. The Supreme Court also noted: “To presume that every case is complete at the time an initial charge is filed, however, is to presume that every prosecutor is infallible— an assumption that would ignore the practical restraints imposed by often limited prosecutorial resources.” United States v. Goodwin, 457 U.S. at 382, 102 S.Ct. 2485. The Tenth Circuit, however, has rejected the proposition that a presumption of vindictiveness may never arise in a pre-trial setting. See United States v. Doran, 882 F.2d 1511, 1520-21 (10th Cir.1990) (“The lesson of Goodwin is that proof of a prose-cutorial decision to increase charges after a defendant has exercised a legal right does not alone give rise to a presumption in the pretrial context.”); United States v. Raymer, 941 F.2d at 1040. The Tenth Circuit has held: “In light of the Goodwin admonition against per se rules in the pretrial setting, we conclude that a totality-of-the circumstances approach is particularly appropriate in the post-mistrial setting. ..United States v. Doran, 882 F.2d at 1521. The Tenth Circuit has explained that, “in those pretrial settings which are genuinely distinguishable from Goodwin and Bordenkircher, we look at the totality of the objective circumstances to decide whether a realistic probability of vindictive prosecution exists.” United States v. Raymer, 9