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United States v. Matish

United States District Court, E.D. Virginia, Newport News Division

June 2, 2016


          OPINION & ORDER

          Henry Coke Morgan, Jr. Senior United Slates District Judge.

         This matter is before the Court on Defendant Edward Matish, III's ("Defendant" or "Matish") Motion to Dismiss Counts 5-8 of the Superseding Indictment, Doc. 35.

         On 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.

         In this 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 Defendant's Motion.

         I. Factual Background

         On 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.

         Defendant 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 at 6.

         On 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.

         After 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.

         II. Legal Standards

         Courts 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.

         In 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.

         In 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.

         Conversely, 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, " ...

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