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Take Your Beating! Prosecutor Can't Vindictively Increase Charges

By William Peacock, Esq. on November 14, 2013 | Last updated on March 21, 2019

If at first you don't succeed, don't try again?

A pair of brothers, Daniel and David LaDeau, allegedly exchanged coded messages while David was in jail. The messages contained information on how to obtain and conceal child pornography. Police obtained a warrant and searched Daniel's home, where they found USB flash drives containing child pornography.

Daniel was charged with one count of possessing child pornography (18 U.S.C. § 2252A(a)(5)(A)), an offense which carried up to 10 years in prison. It should have been a slam-dunk case, but the actions of investigators, who threatened to reveal the allegations to Daniel's ill wife, moments before she was headed into life-threatening surgery, led the district court to suppress the evidence.

Superseding Indictment

The prosecution's case was, in the words of the Sixth Circuit, "eviscerated." But the prosecutor didn't give up. Instead, the government obtained a superseding indictment, days before trial, that charged both brothers with conspiracy to receive child pornography (§ 2252A(a)(2)), rather than conspiracy to possess. The receipt charge carried a mandatory minimum of five years, and a maximum of 20 years in prison.

Presumption of Vindictiveness

Many will remember the landmark Blackledge v. Perry case, in which a prosecutor upped the charge to a felony after the defendant exercised his right to a de novo trial on appeal. In that case, the Supreme Court created the presumption of vindictiveness where the circumstances indicate that a prosecutor's motivation for taking a particular action was retaliation against a defendant who exercises his legal rights.

Of course, when it comes to a case that has already run its course, retaliation is likely easier to spot. But what about pre-trial, when new evidence can appear, motions can change the direction of the case, and prosecutors can simply change their minds?

In United States v. Andrews, the Sixth Circuit held such vindictiveness could be shown by pre-trial proceedings, though the Supreme Court, in United States v. Goodwin, urged restraint in jumping to such conclusions because of the many factors that can affect a prosecutor's pre-trial decisions.

Here, It's Obvious

There was no new evidence. The evidence of the conspiracy had been in the government's possession for 13 months. Their affidavit, explaining the indictment, claims (with no support) that they were simply too busy (during the preceding 13 months) to add the conspiracy charge initially and that they had planned to add it all along. The timing was sheer coincidence.

The Sixth Circuit didn't buy it:

"[T]he only substantive occurrence between the two indictments was LaDeau's successful suppression motion. The government has never suggested that any other development altered its perception of the case during the thirteen months that it was pending, so there is nothing to indicate that the superseding indictment compensated for unexpected changes or an incomplete initial grasp of the pertinent issues or facts."

If Blackledge and Andrews created the presumption, Goodwin weakened it. But even with the weakened presumption, it was obvious what was happening here: the prosecutor was retaliating for losing a suppression motion.

What's the real lesson for prosecutors? Charge the maximum, at the beginning, every single time. Negotiate downward. It's easier that way.

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