United States v. Lowe , 26 F. App'x 120 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4148
SHANNELL LOWE, a/k/a Shennelle
Lowe,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-00-363)
Argued: September 28, 2001
Decided: November 6, 2001
Before WILKINS, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Joseph John McCarthy, DELANEY, MCCARTHY,
COLTON & BOTZIN, P.C., Alexandria, Virginia, for Appellant.
David Jay Ignall, Special Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Kenneth E. Melson, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee.
2 UNITED STATES v. LOWE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Shannell Lowe appeals her conviction for counterfeiting securities,
see 18 U.S.C.A. § 513(a) (West 2000), arguing that the district court
erred in refusing to dismiss her indictment on the ground of prosecu-
torial vindictiveness. Finding no error, we affirm.
I.
Lowe was indicted in March 2000 on 21 counts of bank fraud, see
18 U.S.C.A. § 1344 (West 2000), based on her involvement with a
number of individuals who obtained stolen checkbooks from the
United States mail and used the checks to purchase merchandise from
retail stores. In April 2000, after all of her codefendants had pled
guilty, the district court granted Lowe’s motion to dismiss the indict-
ment on the ground that the facts alleged did not constitute bank fraud
because retail stores, not federally insured institutions, were the vic-
tims of the alleged conduct.
In October 2000, Lowe was indicted for 12 counts of counterfeiting
of securities based on the same facts alleged in the previous indictment.1
Lowe moved to dismiss this indictment on the ground of prosecutorial
vindictiveness, arguing that the second indictment was motivated by
the Government’s desire to punish her for successfully dismissing the
initial indictment and to discourage her codefendants from filing peti-
tions under 28 U.S.C.A. § 2255 (West Supp. 2001). The district court
denied the motion, and Lowe entered a conditional guilty plea to one
count of counterfeiting securities, reserving her right to appeal the
denial of her motion to dismiss.
1
The Government had moved to dismiss nine of the counts from the
original indictment before that indictment was dismissed for failure to
allege facts constituting bank fraud.
UNITED STATES v. LOWE 3
II.
Lowe contends that the district court erred in denying her motion
to dismiss the second indictment on the ground of prosecutorial vin-
dictiveness. She does not argue that there is any direct evidence of
improper motive on the part of the Government. Rather, she claims
that the circumstances under which she was indicted give rise to a
presumption of vindictiveness. We disagree.
To punish an individual for her decision to exercise her legal rights
constitutes a violation of due process. See United States v. Goodwin,
457 U.S. 368, 372 (1982). Direct evidence of improper governmental
motive is not always required to establish prosecutorial vindictiveness
because under certain circumstances an improper motive on the part
of the prosecutor is presumed. See United States v. Wilson, 262 F.3d
305, 314 (4th Cir. 2001). However, the presumption arises "only in
cases in which a reasonable likelihood of vindictiveness exists."
Goodwin, 457 U.S. at 373; see Wilson, 262 F.3d at 317-18. The
"threshold question" in analyzing a vindictiveness claim is whether
the defendant faced exposure to increased punishment after exercising
his legal rights. Byrd v. McKaskle, 733 F.2d 1133, 1136 (5th Cir.
1984). We review de novo a district court decision regarding whether
the evidence presented gives rise to a presumption of vindictive pros-
ecution. See Wilson, 262 F.3d at 316.
Here, there is no reasonable likelihood that the Government’s deci-
sion to seek the second indictment was motivated by a desire to pun-
ish Lowe for exercising her legal rights or to deter her codefendants
from exercising theirs. No presumption arises because the second
indictment exposed Lowe to less punishment than the indictment the
district court dismissed.2 And, no other circumstance supports the
2
Bank fraud, the crime for which Lowe and her codefendants were ini-
tially indicted, is a Class B felony carrying a maximum penalty of 30
years imprisonment and a $1,000,000 fine. See 18 U.S.C.A. § 1344; 18
U.S.C.A. § 3559(a)(2) (West 2000). Counterfeiting securities, the crime
for which Lowe was subsequently indicted, is a Class C felony carrying
a maximum penalty of only 10 years imprisonment and a $250,000 fine.
See 18 U.S.C.A. § 513(a); 18 U.S.C.A. § 3571(b)(3) (West 2000); 18
U.S.C.A. § 3559(a)(3) (West 2000).
4 UNITED STATES v. LOWE
conclusion that it was Lowe’s exercise of her legal rights, rather than
Lowe’s participation in the criminal scheme, that the Government
sought to punish. We therefore conclude that the district court cor-
rectly refused to dismiss Lowe’s indictment.
III.
For the foregoing reasons, Lowe’s conviction is affirmed.
AFFIRMED