United States v. Slatten ( 2014 )

UNITED STATES 1)1sTR1cT coURT
FoR THE 1)1sTR1cT oF CoLUMBIA JUN ~ 5 2014
Clerk, U.S. District & Bankruptcy
) Courts for the District of Columbia
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 14-107 (RCL)
)
NICHOLAS A. SLATTEN, )
)
Defendant. )
)
MEMORANDUM OPINION
Before the Court is defendant Nicholas Slatten’s motion [23] to dismiss the indictment
for vindictive prosecution. Slatten alleges that the govemment increased the charge against him
from voluntary manslaughter, 18 U.S.C. § 1112, to murder in the first degree, 18 U.S.C. § llll,
because he successfully asserted a statute of limitations defense. Upon consideration of Slatten’s
motion [23], the govemment’s opposition [43],1 oral argument held on May 29, 20l4, the
applicable law, and the entire record herein, the Court will DENY the motion to dismiss the
indictment against Slatten.
I. BACKGROUND
Both the District Court and the Court of Appeals for the District of Columbia Circuit
have previously described the factual background of this case. Unitea' States v. Slough, 677 F.
Supp. 2d 112, 116-129 (D.D.C. 2009) ("Slough I"), vacatea’, 641 F.3d 544, 555 (D.C. Cir. 201 l)
("Slough II"); Slough II, 641 F.3d at 547-49. Thus, the Court will now only highlight the
relevant facts and procedural background.
Slatten was initially indicted, along with his co-defendants, on multiple counts of
voluntary manslaughter and attempted manslaughter, as well as one count of using and
1 The defendant opted not to submit a reply brief for this motion.
discharging a firearm in relation to a crime of violence, on December 4, 2008. United States v.
Slough, No. 08 Cranch 360 (D.D.C. Dec. 4, 2008), ECF No. l. However, this Court, Judge Urbina
presiding, granted the defendants’ motion to dismiss the indictment as violating the Supreme
Court’s holding in Kastigar v. United States, 406 U.S. 441 (1972). Slough, ECF No. 218. The
govemment appealed this Court’s decision, and on April 22, 2011, the Court of Appeals for the
District of Columbia Circuit reversed and remanded the case. Slough 11. The Circuit’s Mandate
was issued on June 6, 2012. Slough, ECF No. 252.
In an attempt to avoid the pitfalls of Kastigar, the govemment designated a new trial
team to re-prosecute the case. Gov’t’s Opp’n at 2-3. On October l7, 2013, following a two-year
investigation, the new trial team brought a superseding indictment against Slatten and his co-
defendants. Once again, a grand jury indicted the defendants on multiple counts of voluntary
manslaughter and attempted manslaughter, as well as one count of using and discharging a
firearm in relation to a crime of violence. Sl0ugh, ECF No. 304. Slatten alone was further
indicted on one count of manslaughter for the killing of Ahmed Haithem Ahmed Al Rubia’y, the
driver of a white Kia. Id.
After this Court denied Slatten’s motion to dismiss the superseding indictment on statute
of limitations grounds, Unz``led States v. Slatlen, 2014 WL 6lO970 (D.D.C. Feb. 18, 2014), the
Circuit granted Slatten’s petition for a writ of mandamus, In re Slatten, No. 14-3007 (D.C. Cir.
Apr. 7, 2014), Doc. No. 1487269, explaining that the Circuit’s 2012 Mandate "reversing and
remanding the district court clearly applied only to Slatten’s . . . co-defendants." Thus, since
Slatten’s 2009 dismissal was never actually reversed by the Circuit, the charges rendered in the
October 2013 superseding indictment violated the five-year statute of limitations, 18 U.S.C. §
3282(a), and the superseding indictment as to Slatten was dismissed. Slough, (Apr. 23, 2014),
ECF No. 428.
With the original charges now untimely, Slatten was subsequently indicted on one count
of first-degree murder for the killing of Al-Rubia’y. Um``ted States v. Slatten, No. 14 Cranch 107(D.D.C. May 8, 2014), ECF No. 1. There is no statute of limitations for capital offenses like
murder in the first degree. 18 U.S.C. § 3281; 18 U.S.C. § 111l(b). One day after the new
indictment, Mary McCord, Chief of the Criminal Division of the U.S. Attomey’s Office for the
District of Columbia, e-mailed defense counsel Thomas Connolly offering to "discuss options
for moving forward that do not result in increased exposure for [Slatten]." Opp’n Attach. A.
That same day, Connolly responded, stating, "I am happy to receive (via e-mail) and [sic]
suggestions you have regarding the charges." Ia'. One week later, on May 16, McCord e-
emailed a letter to defense counsel which contained an offer to "dismiss the charge of first-
degree murder" and "proceed by information on the [time-barred] charges contained in the
October 2013 superseding indictment" if Slatten was willing to "waive the statute-of-limitations
defense." Opp’n Attach. B (the "McCord Letter"). On May 19, Slatten moved to dismiss the
indictment for vindictive prosecution.
II. LEGAL STANDARD
"The doctrine of prosecutorial vindictiveness developed as a corollary to the
vindictiveness doctrine that precludes, as a matter of due process, imposition by a judge of a
more severe sentence upon retrial after a defendant has successfully exercised a constitutional
right or pursued a statutory right of appeal or collateral attack." Maddox v. Elzie, 238 F.3d 437,
446 (D.C. Cir. 2001). Similarly, vindictive prosecution "refers to a situation in which the
government acts against a defendant in response to the defendant’s prior exercise of
constitutional or statutory ri ghts." Um``ted States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987),
reh’g granted and opinion vacated, 816 F.2d 695 (D.C. Cir. 1987), reh'g denied and opinion
reinstated, 824 F.2d 1240 (D.C. Cir. 1987).
A defendant may prevail on a claim of prosecutorial vindictiveness by either
demonstrating actual vindictiveness or establishing a presumption of vindictiveness, Actual
vindictiveness requires proof "through objective evidence that a prosecutor acted in order to
punish him for standing on his legal rights." Id. "This showing is, of course, exceedingly
difficult to make." Id.; see also United States v. Go0dwin, 457 U.S. 368, 384 n.l9 (1982) (noting
that a defendant may satisfy the evidentiary burden of a claim of actual vindictiveness "only in a
rare case" . "To invoke the presumption of vindictiveness, [the Court] must find that a
reasonable likelihood of vindictiveness exists-that is, that the second indictment was ‘more
likely than not attributable to the vindictiveness on the part of the [g]ovemment." United States
v. Gaijy, 291 F.3d 30, 34 (D.C. Cir. 2002) (quoting Alabama v. Smith, 490 U.S. 794, 801 (l989)).
The presumption "may be overcome only by objective information in the record justifying the
increased sentence." Goodwin, 457 U.S. at 374. "If the govemment produces such evidence, the
defendant's only hope is to prove that the justification is pretextual and that actual vindictiveness
has occurred. But if the government fails to present such evidence, the presumption stands and
the court must find that the prosecutor acted vindictively." Meyer, 810 F.2d at 1245.
Since Slatten presents no claim of actual vindictiveness, this Memorandum Opinion will
focus solely on whether a presumption of vindictiveness applies to the present facts.
III. ANALYSIS
A. A Presumption of Prosecutorial Vindictiveness Does Not Apply to the Present F acts
Slatten argues that the totality of the circumstances surrounding his pretrial reindictment
for first-degree murder is sufficient to establish a presumption of prosecutorial vindictiveness,
Mot. at 16-23. While Slatten glosses over any difference between the presumption’s application
in a pretrial versus post-trial context, Mot. at 18-19, both the Supreme Court and this Circuit
have plainly set forth such a distinction. Notwithstanding the complex procedural history
predating this motion, Slatten has never been tried for his alleged crimes. Thus, this case
remains, unmistakably, in the pretrial phase.
"[P]ost-trial prosecutorial decisions to file increased charges automatically give rise to a
presumption of vindictiveness." Meyer, 810 F.2d at 1245 (citing Blackledge v. Perry, 417 U.S.
21, 27-29 (1974)). However, the Goodwin Court explained that there is a markedly higher bar
for establishing a presumption in the pretrial context_that a pretrial presumption is far from
automatic in the presence of increased charges. 457 U.S. at 381 ("There is good reason to be
cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial
setting. . . . [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.”). While there remains
disagreement among the circuits as to whether the presumption can apply in the pretrial context,z
this Circuit maintains that Goodwin "declined to adopt a per se rule that in the pretrial context no
presumption of vindictiveness will ever lie." Meyer, 810 F.2d at 1246. Nevertheless, Meyer in
no way lessens the substantially elevated burden that a defendant must meet to establish a
pretrial presumption of vindictiveness. 810 F.2d at 1246 (requiring at least a finding of
"additional facts" that "support a realistic likelihood of vindictiveness" to establish the
presumption in a pretrial situation); see also United States v. Secord, 725 F. Supp. 567, 568
(D.D.C. 1989) ("The burden on Defendant in attempting to show a ‘realistic likelihood’ of
2 Compare United States v. Stewart, 590 F.3d 93, 122-23 (2d Cir. 2009) ("[T]his court has consistently adhered to
the principle that the presumption of prosecutorial vindictiveness does not exist in a pretrial setting.") (intemal
quotation marks and citation omitted) with United States v. LaDeau, 734 F.3d 561, 567 (6th Cir. 2013)
("prosecutorial vindictiveness can potentially be found in the pre-trial addition of charges following pre-trial
assertions of protected rights") (intemal quotation marks and citation omitted).
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vindictiveness in the pretrial context is a difficult one.").
To meet this raised bar in the pretrial context, the Meyer Court recognized four factors, in
addition to increased charges, that, "when taken together, [may] support a realistic likelihood of
vindictiveness and therefore give rise to a presumption:" (1) the govemment’s "disparate
treatment" of a defendant who exercised a legal right; (2) "[t]he simplicity and clarity of both the
facts and law underlying [the prosecution]"; (3) "[t]he govemment’s conduct after levelling [an]
increased charge[] against [a] defendant[]"; and (4) "the govemment’s motivation to act
vindictively in this case." 810 F.2d at 1246-47. While the factors outlined in Meyer surely do
not encompass the entire universe of "additional facts" that may trigger a pretrial presumption,
these factors do provide the Court with an analytical template that leads directly to the
conclusion that a presumption should not apply in this case.
First, any disparate treatment of Slatten, as compared to the Slough defendants, was
required by the expiration of the statute of limitations for Slatten’s involuntary manslaughter
charge. Indeed, the govemment’s only remaining opportunity to pursue criminal liability for
Slatten was to reindict Slatten for first-degree murder. Such legally necessary "disparate
treatment" is a far cry from deciding to bring additional charges against a subset of defendants
who opted for a trial, as occurred in Meyer. Id. at 1246. lt is true that the govemment’s failure
to reindict Slatten before the running of the limitations period produced a need for this increased
charge. Yet govemment oversight, without more, does not "give rise to a suspicion that the
govemment discriminated among the defendants on the basis of their divergent decisions
whether to exercise their [legal rights]." Id.
Second, this Court can attest to a lack of "simplicity and clarity of both the facts and law
underlying [this] prosecution[]." Id. There can be no "suspicion" of vindictiveness due to the
"straightforwardness of either the conduct involved . . . or the law relating to that conduct," as
there was in Meyer, in a case like Slatten’s. Slatten argues that such a suspicion exists because
the increased charge was not a result of "further factual investigation or legal analysis." See id.
at 1247; Mot. at 20. Yet such a consideration is only relevant if a defendant can also show that
the govemment vindictively increased a charge. Slatten, however, fails to demonstrate, beyond
conclusory statements, that the govemment reindicted him for choosing to exercise a legal right.
Throughout his motion, Slatten confuses cause and effect. While Slatten’s petition for a writ of
mandamus caused the Circuit to effectively confirm that the statute of limitations would prohibit
reindictment for voluntary manslaughter, the effect of such confirmation was to leave the
govemment with the choice of letting Slatten go free or reindicting him on the increased charge
of murder in the first degree. Slatten presents no facts indicating or implying that the
govemment’s reindictment for first-degree murder was a response to Slatten’s writ of mandamus
petition~the only legal right that Slatten exercised which is relevant to the Court’s presumption
analysis.
Third, the govemment’s conduct after reindicting Slatten does not "lend[] support to a
finding of a realistic likelihood of vindictiveness." Meyer, 810 F.2d at 1247. In Meyer, the
prosecution displayed "a disturbing willingness to toy with the defendants" by moving to drop
the charge it had added to those defendants who elected to go to trial after the district court had
granted a juijy trial-a prospect that the prosecution now sought to avoid. Id. Here, the
govemment’s proposal to reduce the increased charge in exchange for a waiver of Slatten’s
statute of limitations defense is an acceptable pretrial negotiation offer. The govemment was not
toying with Slatten by reindicting him for murder in the first degree, since that was the
govemment’s only option for keeping Slatten in the case at all.
Fourth, throughout this case, the govemment has exhibited nothing more than a
motivation to try Slatten for a heinous crime it believes he committed. See Gov’t Pet. For
Rehearing or, in the Altemative, to Recall the Mandate, 1n re Slatten, No. 14-3007 (D.C. Cir.
Apr. 17, 2014), Doc. No. 1488808 at 7 (the govemment states that its purpose for reindicting
Slatten was to prevent him from "escap[ing] liability" and to uphold a "compelling public
interest in holding Slatten accountable for his role in the shooting."). As the govemment
correctly notes, Opp’n at 19-20, seeking accountability for alleged criminal conduct is not a
vindictive motive for the purposes of the vindictive prosecution doctrine. See Gary, 291 F.3d at
34. The Meyer Court questioned the motivation of the govemment to bring additional charges
against defendants that chose to go to trial because the govemment likely "wished to avoid the
annoyance and expense of prosecuting [] minor cases at a potentially drawn-out trial." Meyer,
810 F.2d at 1247. In this case, the increased charge brought against Slatten was hardly in
response to "annoyance" or "expense" following Slatten’s exercise of a legal right. In fact, the
govemment could have reduced its prosecutorial burden by allowing Slatten to remain
unindicted. lnstead, the govemment amplified its burden_both legally and economically-by
reindicting Slatten for first-degree murder.
Slatten fiirther cites two additional facts that allegedly "compel a presumption of
vindictiveness here." Mot. at 20-21. First, Slatten argues that the manner in which the
govemment has "treated" Slatten since his reindictment suggests vindictiveness. Yet the
govemment’s lenient pretrial conditions for Slatten reveal nothing with regard to whether the
govemment charged Slatten for first-degree murder because the defendant exercised some
statutory right-and Slatten does not attempt to make such a connection. Id.
Second, Slatten depicts the McCord Letter as a manipulative attempt to prevent him from
exercising his statutory rights. See Mot. 21; Opp’n Attach. B. However, the Supreme Court
rejected Slatten’s argument in Bordenkz``rcher v. Hayes, 434 U.S. 357 (1978). The doctrine of
vindictive prosecution prevents prosecutors from punishing a defendant for exercising his legal
rights. Id. at 363 ("[t]o 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"); Meyer, 810 F.2d at 1245 ("a prosecutorial
action is ‘vindictive’ only if designed to penalize a defendant for invoking legally protected
rights"). lt does not prevent prosecutors from driving a difficult bargain in a pretrial setting with
a defendant they believe committed first-degree murder. See Bordenkircher, 434 U.S. at 363-65
(holding that the Due Process Clause of the Fourteenth Amendment did not prevent the
govemment from threatening more serious charges on which the accused was "plainly subject to
prosecution" during plea negotiations if the accused refused to plead guilty to the original lesser
charge). Negotiating a reduction in charge in exchange for a waiver of a defense is a close
993
relative of plea bargaining. There is no "element of punishment in the ‘ give-and-take of such
negotiations "so long as the accused ‘is free to accept or reject the prosecution's offer."’
Goodwin, 457 U.S. at 378 (quoting Bordenkircher, 434 U.S. at 363). Thus, the prosecution’s
offer-which defense counsel requested, Opp’n Attach. A (in response to McCord’s initial
email, Thomas Connolly responded, "I am happy to receive (via e-mail) and [sic] suggestions
you have regarding the charges.")_does not constitute a due process violation.
Consequently, there are no "additional facts," when combined with the increased charge,
to raise a presumption of prosecutorial vindictiveness, Meyer, 810 F.2d at 1246.
Moreover, the decision to reindict a defendant on different charges after the statute of
limitations nullifies a preceding indictment falls squarely within the bounds of prosecutorial
discretion. As this Court noted previously, the presumption of vindictiveness is not intended "to
give the defendant a free ride for separate crimes he may have committed, or to prevent a
prosecutor from bringing new charges as a result of changed or altered circumstances which
properly bear on prosecutorial discretion." United States v. Jones, 786 F. Supp. 2d 378, 382
(D.D.C. 2011) (intemal quotations and citation omitted). Here, "the govemment-in light of
changed circumstances and in the exercise of its prosecutorial discretion-brought a charge that
[it believes will] yield a conviction and sentence commensurate with its assessment of [the]
defendant's criminal conduct." Id.; see also Goodwin, 457 U.S. at 382 ("A prosecutor should
remain free before trial to exercise the broad discretion entrusted to him to determine the extent
of the societal interest in prosecution.").
Therefore, a presumption of prosecutorial vindictiveness does not apply to the facts of
this case. Accordingly, it is unnecessary for the Court to determine whether the govemment has
offered "objective evidence justifying the prosecutorial action." Meyer, 810 F.2d at 1245.
B. T here Is No Requirernent T hat a Justihcation Be Provided on the Record for Increased
Charges at the T ime of Indictment in the Pretrial Context
Toward the conclusion of his motion, Slatten states that "[t]he D.C. Circuit’s law is
clear that the govemment’s justifications for increases in charge based on the same evidence
must be ‘on the record."’ Mot. at 26 (citation omitted). Without such an on-the-record
explanation here, Slatten argues, the new indictment must be dismissed. Yet Slatten’s claim
regarding "[t]he D.C. Circuit’s law" is refuted by the very cases Slatten cites for support. The
rule Slatten quotes f``rom U.S. v. Jamison, Mot. at 26, only applies "whenever a judge imposes a
more severe sentence upon a defendant after a new trial." 505 F.2d 407, 413 (D.C. Cir. 1974)
(emphasis added). Similarly, U.S. v. Quintana_from which Slatten simply repeats the
previously cited Jamison language, Mot. at 26-preceded its Jamison quotation with an
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unambiguous limitation: "our Court of Appeals ruled that after a mistrial ‘in the context of
increases in the charged offense . . . the reasons for such increases, as well as their factual bases,
must be made a part of the record at the time the higher indictment is filed with the court."’ 695
F. Supp. 24, 24-25 (D.D.C. 1988) (quoting Jamison, 505 F.2d at 416) (emphasis added). Since
there has never been a trial in this case, this Circuit "rule" is inapplicable.
C. T he New Slatten Indictment Does Not Violate the Circuit ’s Writ of Mandamus
Slatten argues that the May 8, 2014, indictment is "a transparent effort to circumvent the
D.C. Circuit’s writ of mandamus compelling the dismissal of earlier charges against Slatten on
statute-of-limitations grounds." Mot. at 1. This is, indeed, a "peculiar" argument. Opp’n at 20.
The writ made clear that Slough 11 and its Mandate, Slough, ECF No. 252, had dismissed the
original indictment against Slatten for voluntary manslaughter, among other charges. In re
Slatten, Doc. No. 1487269. Slatten apparently interprets the Circuit’s writ as a double jeopardy-
like bar on subsequent prosecution of any kind. Mot. at 4, 28-31. Of course, the Circuit’s Order
did not create a blanket prohibition on future indictment.:l Nor could it. See Serfass v. U. S., 420
U.S. 377, 391-92 (1975) ("When a criminal prosecution is terminated prior to trial . . . jeopardy
does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.").
Moreover, the govemment’s offer to decrease the charge against Slatten in exchange for a waiver
of Slatten’s now uncontested statute of limitations defense does not contravene the writ. The
purpose of the writ was to confirm that the Circuit’s 2012 Mandate had not reversed the 2009
Order of this Court, Judge Urbina presiding, to dismiss the indictment against Slatten, and this
Court will not presume to read more into the language of that Order than the Circuit intended.
3 By noting the govemment’s "inexplicable failure to reindict Slatten by the deadline set by the statute of
lirnitations," the Circuit’s Order denying the govemment’s petition for rehearing also clarified that the Mandate only
pertained to the dismissal of the original charges. In re Slatten, No. 14-3007 (D.C. Cir. Apr. 18, 2014), Doc. No.
1489094 at 2.
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Slatten’s attempt to broaden the scope of the writ to forbid pretrial negotiations that include the
possibility of waiving Slatten’s statute of limitations defense is unpersuasive. While Slatten
understandably would have preferred that the govemment not seek reindictment for a crime with
no statute of limitations, there is no law preventing the govemment from doing so in this case.
IV. CONCLUSION
F or the foregoing reasons, the Court DENIES Slatten’s motion [23] to dismiss the
indictment for vindictive prosecution.
A separate Order consistent with this Memorandum Opinion shall issue this date.
L§d_¢r iga C.
Date RoYtcE c. LAMBERTH
United States District Judge
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