USA v. Abrego Garcia

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
KILMAR ARMANDO ABREGO GARCIA,
Defendant.
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No. 3:25-cr-00115
ORDER
Before the Court is the government’s Motion to Quash Defendant Kilmar Armando Abrego
Garcia’s (“Abrego”) subpoenas for Deputy Attorney General Todd Blanche (“Blanche”), Acting
Principal Associate Deputy Attorney General James McHenry (“McHenry”), and Associate
Deputy Attorney General Aakash Singh (“Singh”) to testify at the evidentiary hearing on the
Government’s motivations for charging Abrego. (Doc. No. 181; see Doc. No. 217-1).
The import of the government’s Motion (Doc. No. 181) is within the procedural framework
from which it arises. The government’s Motion (Doc. No. 181) is related to Abrego’s Motion to
Dismiss for Vindictive and Selective Prosecution (Doc. No. 104). Abrego’s Motion (Doc. No.
104) questions whether he is being denied due process because the government is vindictively
prosecuting him.
The burden-shifting framework controls the Court’s analysis. 	Specifically, once a
defendant establishes a prima facie showing of vindictiveness, “a presumption arises in
defendant’s favor[.]” United States v. Zakhari, 85 F.4th 367, 379 (6th Cir. 2023). The Court has
already found that Abrego has made such a showing, entitling him to discovery and an evidentiary
hearing on why the government is prosecuting him. 	(See Doc. No. 138 at 15). 	Given this, the
burden has shifted to the government to “rebut [the presumption] ‘with objective, on-the-record
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explanations’” for charging Abrego, “‘such as governmental discovery of previously unknown
evidence or previous legal impossibility.’” 	Zakhari, 85 F.4th at 379 (quoting United States v.
LaDeau, 734 F.3d 561, 566 (6th Cir. 2013) (citation and quotations omitted)); see United States v.
Andrews, 633 F.2d 449, 456 (6th Cir. 1980) (“only objective, on-the-record explanations can
suffice to rebut a finding of realistic likelihood of vindictiveness”). Whether the government can
produce such evidence is critical, for “[i]f the government fails to present evidence sufficient to
rebut the presumption, the presumption stands and the court must find that the prosecutor acted
vindictively[,]” leading to “dismissal of the charges or other appropriate remedies.” 	Bragan v.
Poindexter, 249 F.3d 476, 482 (6th Cir. 2001) (citing United States v. Meyer, 810 F.2d 1242, 1245,
1249 (D.C. Cir. 1987)). 	However, “[i]f the government produces evidence to rebut the
presumption, the defendant must prove that the offered justification is pretextual and that actual
vindictiveness has occurred.” Id. (citing Meyer, 810 F.2d at 1249).
Because Abrego has already affirmatively satisfied the threshold question of whether he is
entitled to a presumption that his prosecution is vindictive, his subpoenas of Blanche, McHenry,
and Singh serve to support the third step of the vindictive prosecution inquiry, i.e., whether he can
establish pretext and actual vindictiveness. (See Doc. No. 240 at 1). But, as Abrego emphasizes,
to get there requires the government to successfully rebut the vindictiveness presumption Abrego
is entitled to. (See Doc. No. 138 at 15); see also Bragan, 249 F.3d at 482; Zakhari, 85 F.4th at 379.
According to Abrego, the Government has already shown that it cannot do so, given what Abrego
asserts to be troves of evidence in the record indicating that his prosecution is actually vindictive.
(See Doc. No. 275 at 11–15). Based on this record, Abrego argues that the Court could rule on his
Motion (Doc. No. 104) without an evidentiary hearing or the testimony of Blanche, McHenry, and
Singh. (See id.). Nevertheless, the government asserts it can rebut the presumption, and that the
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evidence does not show actual vindictiveness. To rebut the presumption, the government intends
to rely on the testimony of Supervisory Special Agent John VanWie (“SA VanWie”) of Homeland
Security Investigations (“HSI”) Baltimore and Special Agent Rana Saoud (“SA Saoud”) of HSI
Nashville, and, perhaps, the testimony of Assistant U.S. Attorney Robert McGuire. (See Doc. No.
196 at 1).
Considering this landscape, and Abrego’s insistence that the current record alone warrants
dismissal in his favor, whether the Court needs to hear testimony from Blanche, McHenry, and
Singh, is questionable. Still, for the sake of thoroughness and to make sure that all parties are fully
heard, the Court finds it prudent to proceed with an evidentiary hearing on Abrego’s Motion (Doc.
No. 104). 	In doing so, it will limit the hearing to only the second step of the prosecutorial
vindictiveness 	analysis: 	whether 	the 	government 	can 	produce 	objective, 	on-the-record
explanations for Abrego’s prosecution that rebuts the presumption of vindictiveness. LaDeau, 734
F.3d at 566. 	If the government can rebut that showing, the Court will revisit the government’s
Motion to Quash (Doc. No. 181), as the burden will again shift back to Abrego to establish that
the government’s rationale for prosecuting him is pretextual and that his prosecution is actually
vindictive. 	See Bragan, 249 F.3d at 482. This shift may make the appropriateness of Abrego’s
subpoenas of Blanche, McHenry, and Singh a pertinent inquiry. If the government fails to carry
its burden at the evidentiary hearing, however, the Court need not resolve the government’s Motion
(Doc. No. 181) on the merits, as the government’s Motion to Quash (Doc. No. 104) would be
granted without need for any further discovery. See Bragan, 249 F.3d at 482 (if government fails
to rebut a presumption of vindictiveness, dismissal or other remedies are appropriate).
Accordingly, the government’s Motion (Doc. No. 181) is RESERVED pending the
evidentiary hearing on whether the government can rebut Abrego’s prima facie showing of a
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realistic likelihood of vindictiveness. The trial scheduled for January 27, 2026, is
CANCELLED. The evidentiary hearing will occur at 9:00 a.m. on Wednesday, January
28, 2026.
IT IS SO ORDERED.
____________________________________
WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE
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