United States District Court, E.D. Virginia, Newport News Division
OPINION & ORDER
Coke Morgan, Jr. Senior United Slates District Judge.
matter is before the Court on Defendant Edward Matish,
III's ("Defendant" or "Matish")
Motion to Dismiss Counts 5-8 of the Superseding Indictment,
February 8, 2016, Defendant was named in a four (4) count
criminal indictment charging him with access with intent to
view child pornography, in violation of 18 U.S.C. §
2252A(a)(5) and (b)(2). Doc. 1. The Government filed an eight
(8) count superseding indictment on April 6, 2016, charging
Defendant with access with intent to view child pornography,
in violation of 18 U.S.C. § 2252A(a)(5) and (b)(2)
(Counts One through Four), and receipt of child pornography,
in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1)
(Counts Five through Eight). Doc. 26. The four new counts in
the superseding indictment each contain a mandatory minimum
of five years' imprisonment; there was no mandatory
minimum under the original indictment.
Motion, Defendant "moves this Court for an order
dismissing Counts 5-8 of the superseding indictment for
vindictive prosecution in violation of the Fifth
Amendment's Due Process Clause." Doc. 35 at 1. The
Court held a hearing to address this Motion on May 26, 2016.
For the reasons stated herein, the Court DENIES
March 10, 2016, the government extended a
"non-binding" plea offer to Defendant. Doc. 35 at
2, Ex. A; Doc. 54 at 3. This letter allowed Defendant to
plead guilty to Count One of the indictment, and it set a
deadline for accepting the plea of March 18, 2016. Doc. 35,
Ex. A. The letter additionally noted that if Defendant did
not accept, the Government "reserve[d] the right to
return to the Grand Jury to pursue any and all additional
appropriate charges based on [Mr. Matish's]
conduct." Id On March 12, 2016, defense counsel
informed the Government of his intention to file a notice of
insanity defense; however, he did not mention any other
possible pretrial motions at that time. Doc. 54 at 4. In
order to allow Defendant time to undergo a mental health
evaluation, the Government extended the plea offer deadline
to March 23, 2016. Doc. 35 at 2; Doc. 54 at 4.
filed his first two motions to suppress on March 17, 2016,
Docs. 18, 19. The First Motion challenges the warrant that
authorized the Government to install a Network Investigative
Technique ("NIT") on Defendant's computer. See
Doc. 18. After filing the motions to suppress, defense
counsel discussed plea arrangements with the Government. Doc.
35 at 3; Doc. 54 at 5. Mr. Matish offered to plead guilty to
every count in the indictment, but he wished to litigate his
First Motion as well. Doc. 35 at 3; Doc. 54 at 5. The parties
extended the plea offer deadline to March 24, 2016. Doc. 54
March 24, 2016, the Government declined Defendant's
offer, noting that "she could not agree to indefinitely
extend the outstanding plea offer pending the outcome of
future litigation of [the] suppression motion." Doc. 54
at 6, Ex. 2. Defense counsel then proposed that Defendant
enter a conditional plea of guilty, which would depend on the
outcome of his First Motion to Suppress. Doc. 54 at 6, Ex. 3.
The Government declined. Doc. 54 at 6, Ex. 4. At this point,
the Government extended the deadline to March 25, 2016.
the Government did not explain to defense counsel why she
rejected his conditional plea counteroffer, the Government
confirmed that the plea offer had been withdrawn on March 29,
2016. Doc. 54 at 7, Ex. 6. The Government responded to
Defendant's first two motions to suppress on April 4,
2016. Docs. 24, 25. The Grand Jury returned an eight-count
superseding indictment on April 6, 2016. Doc. 26.
recognize that a prosecutor acts vindictively and
"violates the Due Process Clause of the Fifth Amendment
by exacting a price for a defendant's exercise of a
clearly established right or by punishing the defendant for
doing what the law plainly entitles him to do."
United States v. Wilson, 262 F.3d 305, 314 (4th Cir.
2001) (citing United States v. Goodwin, 457 U.S.
368, 372 (1982)). Indeed, to "punish a person because he
has done what the law plainly allows him to do is a due
process violation 'of the most basic sort.'"
Goodwin, 457 U.S. at 372 (quoting Bordenkircher
v. Haves, 434 U.S. 357, 363 (1978)). A defendant either
can allege that a prosecutor acted with actual vindictiveness
or that circumstances exist from which an improper vindictive
motive may be presumed. Wilson, 262 F.3d at 314. In
order to establish actual prosecutorial vindictiveness,
"a defendant must show, through 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." Id at 314. To
invoke a presumption of vindictiveness, "a defendant
must show that the circumstances 'pose a realistic
likelihood of vindictiveness.'" Id (quoting
Blackledee v. Perry., 417 U.S. 21, 27 (1974)). A
defendant can rely on circumstances surrounding the
initiation of the prosecution and need not provide direct
evidence of an actual retaliatory motive when alleging that
the presumption of vindictiveness applies to his case.
Id at 317. The Fourth Circuit has noted that
"such a presumption is warranted only when circumstances
warrant it for all cases of the type presented."
Wilson, 262 F.3d at 315. Hence, since "the
presumption of vindictiveness must be applicable to all cases
presenting the same circumstances, it will rarely, if ever,
be applied to prosecutors' pretrial decisions."
Id. The Fourth Circuit stresses that
prosecutors' initial charging decisions "should not
freeze future conduct." Id. If the defendant
establishes a presumption of vindictiveness, the burden
shifts to the government to justify its conduct by presenting
objective evidence. Id at 314-15.
Goodwin, the Supreme Court of the United States
"declined to impose a presumption of vindictiveness to a
prosecutor's pretrial decision to add charges to an
indictment after a defendant failed to plead guilty to the
original charges as anticipated." Wilson, 262
F.3d at 318 (citing Goodwin, 457 U.S. at 383).
Unlike a decision to charge a defendant before a trial
begins, "a change in the charging decision made after an
initial trial is completed is much more likely to be
improperly motivated than is a pretrial decision."
Wilson, 262 F.3d at 319 (quoting Goodwin,
457 U.S. at 381). The Court in Goodwin stated that
"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."
Goodwin, 457 U.S. at 381. The Court noted that it
"is unrealistic to assume that a prosecutor's
probable response to such motions is to seek to penalize and
to deter." Id.
United States v. LaDeau, the Sixth Circuit addressed
the question of whether there existed a presumption of
vindictiveness when the Government filed a superseding
indictment after the court granted the defendant's motion
to suppress evidence. 734 F.3d 561, 564 (6th Cir. 2013). The
Sixth Circuit stressed that the superseding indictment
"subjected [the defendant] to a five-to-twenty-year
prison term instead of the previously applicable statutory
range of zero to ten years." Id. Noting that
"the only substantive occurrence between the two
indictments was [the defendant's] successful suppression
motion" and that "the burden [the defendant's]
successful suppression motion placed upon the government was
significant, " the Sixth Circuit upheld the district
court's finding of a presumption of vindictiveness.
Id. at 568-69. The Sixth Circuit wrote that the
motion at issue "was neither routine nor typical: [the
defendant] succeeded in suppressing crucial evidence and
thereby eviscerated the government's possession
case." Id. at 569. The court noted that
"the increased charge here did not stem from the plea
bargaining process." Id.
in United States v. Suarez, the Sixth Circuit held
that a defendant's mere intent to file pretrial
suppression and dismissal motions was insufficient to support
a claim of prosecutorial vindictiveness. 263 F.3d 468, 482
(6th Cir. 2001). The court found that the defendant could not
"show the prosecution had any particular 'stake'
in preventing the assertion of these rights, " ...