United States District Court, E.D. Virginia, Newport News Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION IN LIMINE TO DISMISS CHARGES
ROBERT G. DOUMAR, Senior District Judge.
This matter comes before the Court upon Kelvin Brown's (Defendant") Motion in Limine to Dismiss Charges ("Motion to Dismiss"), arguing that the charges against him must be dismissed as vindictive prosecution, selective prosecution, and/or prosecutorial misconduct. ECF No. 122. For the reasons set forth herein, the instant Motion to Dismiss is DENIED.
I. PROCEDURAL AND FACTUAL BACKGROUND
The Defendant was indicted on five counts by a Grand Jury on November 14, 2013: (1) conspiracy to possess with intent to distribute, distribute, and manufacture 280 grams or more of cocaine base and to possess with intent to distribute and distribute marijuana, in violation of 21 U.S.C. § 846; (2) distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); (3) possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); (4) possession of a firearm in a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (5) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). ECF No. 1. Related charges against three co-defendants-Goddience L. Mills, Bernard Alonzo Lewis, and Tasha Banks-were returned in the same indictment. Id.
At the Defendant's arraignment on November 26, 2013, he expressed a desire to represent himself; the Court appointed an attorney, Adam Carroll, to speak with the Defendant and continued the matter. ECF No. 34. On December 2, 2013, the Defendant was thoroughly questioned by Magistrate Judge Tommy Miller regarding his representation. ECF No. 37. The Defendant ultimately agreed to have Mr. Carroll appointed as his attorney. Id . Shortly after these hearings, two co-defendants in the case pled guilty: Tasha Banks on December 17, 2013, ECF No. 42, and Bernard Alonzo Lewis on January 8, 2014, ECF No. 51.
A superseding indictment was returned against the Defendant, his remaining alleged co-conspirator (Goddience L. Mills), and a new alleged co-conspirator, Dwight Pender, on January 13, 2014. ECF No. 54. This superseding indictment, in addition to charging the Defendant with all the same crimes as contained in the original indictment, also alleged that the Defendant was guilty of conspiracy to distribute and possess with the intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); a second count of possession of a firearm in a drug trafficking crime, in violation of 18 U.S.C. § 924(c); distribution of 28 grams or more of cocaine base, in violation of 21 U.S.C. § 841 (a)(1) and (b)(l)(B)(iii); and a second count of distribution of cocaine, in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(C). Id . The superseding indictment also extended back the date the conspiracy was alleged to have begun-from about 2006 in the original indictment to about 2000 in the superseding indictment-and also alleged new overt acts in support of the conspiracy. Id.
On March 4, 2014, during a motion hearing in the case, the Defendant stated to the Court that he wanted to represent himself. ECF No. 89. The undersigned explained the consequences of such a decision, and gave the Defendant a week to make a final decision. Id . At a status conference on March 10, 2014, the Defendant affirmed to the Court that after giving the matter due consideration, he did want to proceed pro se. The undersigned granted his request and appointed Mr. Carroll as standby counsel. Ord., ECF No. 111.
On March 28, the Defendant filed the instant Motion to Dismiss arguing that the superseding indictment amounts to vindictive prosecution, prosecutorial misconduct, and/or selective prosecution-in sum, an attempt to punish him for exercising his right to trial and right to represent himself. Mot. to Dismiss 1, ECF No. 122. The Government responded on April 7, 2014. ECF No. 129. The deadline for the Defendant to reply, April 14, 2014, has passed without any new filings on this motion. The matter is now ripe for decision.
II. LEGAL STANDARD
A. VINDICTIVE PROSECUTION
Vindictive prosecution, defined as punishing a criminal defendant "for exercising a protected statutory or constitutional right, " is a violation of due process. United States v. Goodwin , 457 U.S. 368, 372, 373-74 (1982). The right to a trial and the right to represent oneself are constitutional rights. U.S. Const. amend. VI; Adams v. U.S. ex rel McCann. 317 U.S. 269 , 279 (1942). A defendant may prove actual prosecutorial vindictiveness with objective evidence that "(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). However, since "[m]otives are complex and difficult to prove, " the Supreme Court has held that in some cases, an improper vindictive motive may be presumed when a prosecutor acts to the detriment of the defendant after he has exercised a legal right. Goodwin , 457 U.S. at 373. Such a presumption may be made "only in cases in which a reasonable likelihood of vindictiveness exists." Id .; United States v. Perry , 335 F.3d 316, 324 (4th Cir. 2003).
The typical case where such a reasonable likelihood of vindictiveness exists (and thus gives rise to a presumption thereof) is when a defendant is charged with more serious crimes after a successful appeal grants him a new trial. See, e.g., Blackledge v. Perry , 417 U.S. 21, 28-29 (1974) (finding it constitutionally impermissible for the state to bring a more serious charge against a defendant after a new trial was ordered on appeal). In fact, the Fourth Circuit has held that it is rare that such a presumption would be appropriate outside that context. Perry , 335 F.3d at 324 ("[A] presumption of prosecutorial vindictiveness is generally warranted only in a postconviction setting, such as when a defendant successfully attacks his conviction on appeal and then receives a harsher sentence on re-trial."); see also United States v. Fiel , 35 F.3d 997, 1007 (4th Cir. 1994) ("The presumption generally arises where the defendant is reindicted after she exercises her legal right to a trial de novo or following her successful post-conviction appeal.")
In the pre-trial context, on the other hand, courts have been "extremely cautious in applying the presumption" of improper vindictive motive. Perry , 335 F.3d at 324. The Supreme Court held that such a presumption does not arise when the Government carries through on a threat made during plea negotiations to file additional charges if the defendant rejects the proffered plea bargain. Bordenkircher v. Hayes , 434 U.S. 357, 363 (1978). The Fourth Circuit has flatly stated that "[i]f a prosecutor brings additional charges after a defendant refuses to accept a plea bargain, a court cannot presume that the additional charges are an impermissible penalty for the defendant's refusal." United States v. Williams , 47 F.3d 658, 661 (4th Cir. 1995) (emphasis added).
Without more, a prosecutor's decision to increase the charges against a defendant in the pre-trial context simply cannot give rise to a presumption of prosecutorial vindictiveness because it does not give rise to a "realistic likelihood of vindictiveness." United States v. Meyer , 810 F.2d 1242, 1246 (D.C. Cir. 1987) ("The lesson of Goodwin is that proof of a prosecutorial decision to increase charges after a ...