United States v. Holmes ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Criminal Action No. 21-416 (RDM)
v.
DEMARCO L. ALLGOOD, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
On June 21, 2021, a federal grand jury returned an indictment charging Defendants
DeMarco Allgood, Nathaniel Holmes, and Malik Hill (“Defendants”) with kidnapping a sixteen-
year-old woman, T.L., in violation of 18 U.S.C. § 1201(a). The statute includes a “Special Rule
for Certain Offenses Involving Children:” a twenty-year mandatory minimum sentence is
required in cases where (1) the victim is under eighteen-years-old, (2) the offender is over
eighteen-years-old, and (3) the offender is not a parent, grandparent, brother, sister, aunt, uncle,
or other “individual having legal custody of the victim.” 18 U.S.C. § 1201(g). The indictment
did not refer to the special rule in Section 1201(g) or allege that T.L. was a minor.
On November 29, 2021, Defendants declined to consent to tolling time under the Speedy
Trial Act, Dkt. 61 at 1, and asked to proceed to trial as soon as possible. The Court set a trial
date for February 9, 2022. See Minute Entry (Dec. 3, 2021). On January 13, 2022, a grand jury
returned a superseding indictment, which includes the allegations necessary to invoke the
“Special Rule for Certain Offenses Involving Children.” 18 U.S.C. § 1201(g). As a result,
Defendants now face a twenty-year mandatory minimum sentence if convicted.
Defendant Allgood moves to dismiss the superseding indictment, arguing that the
addition of the enhancement for allegedly kidnapping a minor constitutes vindictive prosecution.
Dkt. 103. In particular, he alleges that the government sought and obtained the superseding
indictment in retaliation for Defendants’ invocation of their speedy trial rights. Id. at 5.
Defendants Hill and Holmes move to join in Allgood’s motion to dismiss. Dkt. 109 (Hill);
Dkt. 110 (Holmes). For the following reasons, the Court will GRANT Hill and Holmes’
motions to join in Allgood’s motion but will DENY Defendants’ motion to dismiss.
I. BACKGROUND
A. Factual Background
The charges in this case arise from events that allegedly occurred on the night of April 20
and the morning of April 21, 2021. On the night of April 20, Allgood, Hill, and Holmes
allegedly attended a candlelight vigil for their deceased friend, Kerry “Dirty” Odoms, who had
been killed. Dkt. 67 at 1. The vigil was also attended by a sixteen-year-old woman referred to as
T.L., with whom Odoms had allegedly been romantically involved. Dkt. 103 at 1. According to
the government, before Odoms was killed, he “left a bag containing stolen guns and white
powder with [T.L.]” Dkt. 67 at 2.
The government maintains that, after the vigil, Allgood approached T.L. and asked her
whether Odoms “had left anything with her.” Id. at 3. T.L. said that she would check, “and
Allgood put his number in [her] phone.” Id. The two parted ways, and T.L. went home. Id.T.L. tried to ignore Allgood’s repeated calls that night, but she “eventually . . . told Allgood that
she only had some ‘white stuff.’” Id. Allgood then allegedly told T.L. “to let him know if she
found anything else in the house.” Id.2
Unsatisfied, Allgood, Holmes, and Hill allegedly went to T.L.’s apartment at
approximately 11:52 p.m., and Allgood demanded, “where the shit at?” Id. at 4. The men then
allegedly “pushed [T.L] through the apartment [and] search[ed] for the guns.” Id. According to
the government, when T.L. “denied knowing anything about [the] guns,” Hill, who was armed,
“told Holmes that they should kill” T.L. Id. At that point, T.L. allegedly told the men that she
gave the guns to Witness 1, and the men then forced her to call Witness 1 and to tell the witness
“that either the guns would turn up or [she] would be dead.” Id. Witness 1 denied knowledge of
the guns, despite T.L.’s pleas to tell the men where the guns were located. Id. While the men
allegedly continued to confine T.L. in her apartment, Holmes then called Donaesha Hawkins,
who arrived at the apartment at approximately 12:24 a.m. Id. When Hawkins entered the
apartment, Holmes allegedly told her that T.L. “had ‘Dirty’s shit’ and would not tell [them]
where it was.” Id. Hawkins, in turn, “took off her jacket and started to hit and punch [T.L.] all
over her body,” and, after T.L. fell to the ground, Hawkins proceeded to kick her. Id. at 4–5.
Allgood allegedly “pulled [T.L.] to her feet by [her] hair so that Hawkins could continue beating
[her].” Dkt. 1-1 at 5.
When T.L. told the men that Witness 1 had given “the guns to someone who lived in
Maryland,” Holmes, Allgood, and Hill allegedly told T.L. “to get into a car so that she could lead
them to the location.” Dkt. 67 at 5. According to the government, T.L. “agreed to take them to
Maryland, but only because she did not feel that she had a choice after having been beaten up by
Hawkins and held in her apartment.” Id. T.L. then directed the men to an apartment complex in
Suitland, Maryland, “where she believed the guns were.” Id. Defendants “did not attempt to
enter the apartment [complex]”; instead, “after [T.L.] pointed out the building, the group decided
to return to D.C.” Id. During the drive, Holmes allegedly told T.L. that he protected her from
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“harm by others” and that he was “driving quickly because the other men wanted to kill her.”
Dkt. 112 at 3. According to the government, “[o]nce back in Washington, D.C., Allgood
displayed a gun and told [T.L.] that if the stolen guns did not show up in two to three days, he
would kill her.” Dkt. 67 at 6.
Upon returning to T.L.’s apartment, Hill and Allgood “drove away,” but Holmes stayed
with T.L. Id. The government alleges that Holmes then sexually assaulted T.L., in part by
“threaten[ing] [T.L.]” that he would “call back the other men to hurt her” if she did not engage in
sexual acts. Id. at 7. Holmes also allegedly told T.L., “I just saved your life. You could do
something . . . just come on” or words to that effect. Dkt. 112 at 4.
B. Statutory and Procedural Background
The federal kidnapping statute, 18 U.S.C. § 1201, provides, in relevant part:
(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or
carries away and holds for ransom or reward or otherwise any person, except
in the case of a minor by the parent thereof, when—
(1) the person is willfully transported in interstate or foreign commerce,
regardless of whether the person was alive when transported across a
State boundary, or the offender travels in interstate or foreign
commerce or uses the mail or any means, facility, or instrumentality of
interstate or foreign commerce in committing or in furtherance of the
commission of the offense;
...
shall be punished by imprisonment for any term of years or for life
and, if the death of any person results, shall be punished by death or
life imprisonment.
18 U.S.C. § 1201(a)(1). Section 1201 includes a separate provision titled “Special Rule for
Certain Offenses Involving Children.” 18 U.S.C. § 1201(g). Under that provision, a twenty-year
mandatory minimum sentence is required when: (1) “the victim of an offense under [18 U.S.C.
§ 1201] has not attained the age of eighteen years;” (2) “the offender . . . has attained such age;”
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and (3) the offender is not “a parent,” “a grandparent,” “a brother,” “a sister,” “an aunt,” “an
uncle,” or “an individual having legal custody of the victim.” Id.On June 14, 2021, the government charged Defendants by criminal complaint with
kidnapping in violation of 18 U.S.C. § 1201(a). Dkt. 1. The complaint also charged Holmes
with first degree sexual abuse, in violation of D.C. Code § 22-3002, and it charged Hawkins with
kidnapping, in violation of D.C. Code § 22-2001. Id. Hawkins was not charged with violating
18 U.S.C. § 1201, which (unlike D.C. Code § 22-2001) requires willful transportation of the
victim in interstate commerce. The complaint described T.L. as “a sixteen-year-old female with
a date of birth in 2004.” Dkt. 1-1 at 1.
On June 21, 2021, a federal grand jury returned a three-count indictment charging
Defendants and Hawkins with committing the same offenses listed in the criminal complaint.
Dkt. 17. Count One of the indictment charged Defendants with kidnapping in violation of 18
U.S.C. § 1201(a)(1), alleging that
[b]etween on or about April 20, 2021 and on or about April 21, 2021, within the
District of Columbia, Demarco T. Allgood, Nathaniel Holmes, and Malik T. Hill
did unlawfully and willingly seize, confine, kidnap, abduct, carry away, and hold
T.L. for some purpose, and, in committing and in furtherance of the offense,
willfully traveled in interstate commerce from the District of Columbia to the State
of Maryland and from the State of Maryland to the District of Columbia and
willfully transported T.L. from the District of Columbia to the State of Maryland
and from [the] State of Maryland to the District of Columbia.
Dkt. 17 at 1. Count Two of the indictment charged Hawkins with kidnapping, in violation of
D.C. Code § 22-2001. Id. at 2. Count Three charged Holmes with first degree sexual abuse, in
violation of D.C. Code § 22-3002. Id.On June 23, 2021, Defendants appeared before a magistrate judge for arraignment and
detention hearings. The government moved to detain Allgood, Hill, and Holmes pending trial on
the ground that “no condition or combination of conditions [of release] [would] reasonably
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assure the safety of any other person and the community.” 18 U.S.C. § 3142(e). At Holmes’s
detention hearing, the magistrate judge observed that the Bail Reform Act establishes a
rebuttable presumption that “no condition or combination of conditions will reasonably assure
. . . the safety of the community” in cases in which a judicial officer “finds that there is probable
cause to believe that the person committed” an enumerated crime, including “an offense
involving a minor victim under [18 U.S.C. § 1201].” Dkt. 22 at 10 (Hrg. Tr.). The magistrate
judge asked the government whether the rebuttable presumption applied to Defendants, given
that they were charged with kidnapping and that the victim was allegedly a minor. Id. The
government responded that it was “having further officewide discussions over – holistically with
kidnapping” and that it was “not asking for a rebuttable presumption at this time.” Id. The
magistrate judge ordered that each Defendant be detained pending trial. Id.Over the next several months, the government produced multiple rounds of discovery to
the Defendants. See Dkt. 58 at 1. On November 29, 2021, the parties filed a joint status report
indicating that “[c]ounsel for each defendant requests a trial date and further requests a briefing
schedule for motions, oppositions, and replies.” Dkt. 61 at 1. Four days later, on December 3,
the Court held a scheduling conference, at which Defendants reiterated their desire to proceed to
trial as soon as possible. The Court set a trial date of February 9, 2022. See Minute Entry
(Dec. 3, 2021).
On January 7, 2022, the government filed a motion to continue the trial. Dkt. 83. Among
the grounds cited for seeking a continuance, the government represented that “an anticipated
grand jury witness [was] infected with COVID-19 and cannot testify,” thus preventing “the
government [from] seek[ing] a superseding indictment.” Id. at 2. In a footnote, the government
explained that “[t]he kidnapping in this case involved a minor,” and, “[t]herefore, the defendants
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are subject to a 20-year mandatory minimum sentence.” Id. at 2 n.3. The government further
asserted that “each defendant was formally notified of the government’s intent [to seek a
superseding indictment] in December 2021” and that “[t]he superseding indictment will not
charge any conduct for which counsel for each defendant has not been on notice.” Id. at 3 n.3.
Defendants opposed the motion. See Dkt. 89 (Hill); Dkt. 92 (Allgood); Dkt. 93 (Holmes).
On January 13, 2022, a federal grand jury returned a four-count superseding indictment.
Dkt. 90. The superseding indictment is similar to the original indictment—it continues to charge
Defendants with kidnapping under federal law, to charge Hawkins with kidnapping under D.C.
law, and to charge Holmes with first degree sexual abuse. Id. It differs from the original in
several material respects, however, including that (1) Holmes is now charged with two counts of
first degree sexual abuse, and (2) Count One of the superseding indictment charges Allgood,
Holmes, and Hill with “Kidnapping of a Minor and Aiding and Abetting in violation of [18
U.S.C. §§] 1201(a)(1), 1201(d), 1201(g), and 2” and alleges the elements of the special rule in
Section 1201(g). Id. at 1–3. The superseding indictment also added an enhancement based on
T.L.’s age to the D.C. law charge against Hawkins. Id. at 2.
On January 24, 2022, Allgood filed a motion to dismiss Count One of the superseding
indictment, arguing that the government impermissibly asked the grand jury to add the federal
enhancement for alleging kidnapping of a minor simply to punish Defendants for asserting their
rights to a speedy trial. Dkt. 103. Holmes and Hill moved to join in Defendant Allgood’s
motion. 1 Dkt. 107 (Holmes); Dkt. 109 (Hill). The Court heard argument on the motion on
1
On January 31, 2022, the government informed Allgood, Hill, and Holmes that “the case as to
Ms. Hawkins has been resolved.” See Minute Entry (Jan. 31, 2022).
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February 7, 2022. That same day, for reasons unrelated to the motion to dismiss, the Court
continued the trial in this case, which is now set to commence on August 22, 2022.
II. ANALYSIS
Federal courts have long recognized that enforcement of the nation’s criminal laws is “a
‘special province’ of the Executive.” United States v. Armstrong, 517 U.S. 456, 464 (1996).
Prosecutors have “broad discretion to enforce the law, and their decisions are presumed to be
proper absent clear evidence to the contrary.” United States v. Slatten, 865 F.3d 767, 799 (D.C.
Cir. 2017) (citing Armstrong, 517 U.S. at 464). But that discretion is not without limitation; the
Due Process Clause of the Fifth Amendment protects criminal defendants from “vindictive
prosecution” by “prohibit[ing] prosecutors from ‘upping the ante’ by filing increased charges in
order to retaliate against a defendant for exercising a legal right.” Id. at 798–99 (quoting
Blackledge v. Perry, 417 U.S. 21, 27–28 (1974)).
To succeed on a claim of vindictive prosecution, a defendant must show “that the
increased charge was ‘brought solely to “penalize” [him] and could not be justified as a proper
exercise of prosecutorial discretion.’” Id. at 799 (emphasis in original) (quoting United States v.
Goodwin, 457 U.S. 368, 380 n.12 (1982)). A defendant may make that showing in two ways.
First, he may show “actual vindictiveness” by offering “objective evidence that a prosecutor
acted in order to punish him for standing on his legal rights.” United States v. Meyer, 810 F.2d
1242, 1245 (D.C. Cir. 1987). Second, he may “rely on a presumption of vindictiveness[] when
the facts indicate a ‘realistic likelihood of vindictiveness,’” id.—that is, when the facts indicate
that “the second indictment was ‘more likely than not attributable to the vindictiveness on the
part of’ the Government,” United States v. Meadows, 867 F.3d 1305, 1311 (D.C. Cir. 2017)
(quoting United States v. Gary, 291 F.3d 30, 34 (D.C. Cir. 2002)). If a defendant offers evidence
8
sufficient to support a presumption of vindictiveness, “the burden shifts to the government to
produce ‘objective evidence’ that its motivation in charging the defendant was lawful.” Id. at
1312. Then, if the government produces such evidence, the burden shifts back to the defendant,
whose “only hope is to prove that the justification is pretextual and that actual vindictiveness has
occurred.” Meyer, 810 F.2d at 1245.
Defendants contend that that the kidnapping charge should be dismissed under both
standards: according to Defendants, there is both “direct evidence” of vindictive prosecution,
Dkt. 103 at 10, and, alternatively, the presumption of vindictiveness should apply, id. at 1–9.
The Court will address each argument in turn.
A. Actual Vindictiveness
Defendants argue that “the record in this case supports a finding of [actual]
vindictiveness.” Id. at 9. More specifically, they posit that, “in a December 10, 2021 call with
defense counsel, the supervising AUSA specifically agreed and acknowledged that a twenty-year
mandatory minimum sentence in this case would not be in society’s interests.” Id. at 9–10. That
alleged statement provides proof of actual vindictiveness, Defendants contend, because “[t]he
central question in a pretrial vindictiveness motion is whether a new charge truly reflects ‘the
prosecutor’s normal assessment of the societal interest in prosecution.’” Id. at 9 (quoting
Goodwin, 457 U.S. at 380).
In support of this argument, Allgood submits a declaration with his motion to dismiss
from his counsel, Matthew Peed, asserting that—upon learning of the government’s intent to
charge violations of Section 1201(g) in a superseding indictment—Peed spoke with Assistant
U.S. Attorney April Russo about his view that charging Defendants with violating
Section 1201(g) would be unjust. Dkt. 103-1 at 1–2 (Peed Decl. ¶¶ 2, 4). According to Peed,
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Russo “acknowledged that this case was not within the heartland of kidnapping cases for which
the mandatory minimum sentence was designed.” Id. at 2 (Peed Decl. ¶ 5). Peed also asserts
that Russo “specifically agreed with [his] assessment that a twenty-year mandatory minimum
was not appropriate in terms of societal interest.” Id. Russo added, however, that “given the
request of trial counsel to supersede the indictment and apply the enhancement, she would
probably approve the request.” Id.
In response to the motion to dismiss and Peed’s declaration, the government submitted a
declaration from Russo, who attests that she “reviewed the description of th[e] phone call in
[Peed’s] declaration” and, while she does not “recall every specific of what was discussed,” she
“do[es] not believe [she] ever used the term ‘societal interests’ on the call.” Dkt. 122-2 at 1
(Russo Decl. ¶ 3); see also Dkt. 172-2 at 1 (Russo Decl. ¶ 3). Moreover, Russo asserts that she
“likely agreed that a sentence less than the 20-year mandatory minimum could be appropriate to
resolve the case in advance of trial.” Dkt. 172-2 at 1 (Russo Decl. ¶ 3). But, according to Russo,
“[i]n no way did [she] intend to signal to counsel on the call that the use of the mandatory-
minimum enhancement was unlawful, inappropriate, or otherwise unsuitable in this case.” Id.
Peed, in turn, submitted a supplemental declaration. Dkt. 128-1 (2d Peed Decl.). In that
declaration, he attests that “the call was not about, and was not in the context of, any plea
negotiations.” Id. at 1 (2d Peed Decl. ¶ 4). He further asserts that, in his view, “Russo agreed
with [his] assertion that irrespective of any plea, a twenty-year sentence in this case [is] not
appropriate in light of society’s interests.” Id. at 2 (2d Peed Decl. ¶ 5). Peed appended to the
supplemental declaration an email dated December 10, 2021, from him to the other counsel for
Defendants, in which he stated that he spoke to Russo and that “she acknowledged that 20 years
is not appropriate.” Dkt. 128-2 at 1. In the email, Peed noted that Russo “still [thought] they
10
[would] supersede, but said she [was] at least going to look into whether they could avoid the
mandatory minimum by not charging the age as an enhancement.” Id. Russo “said that some
mandatory minimums can’t be avoided by charging decisions, and she [was] getting higher ups
to look into it.” Id.
In light of these competing submissions, the Court asked counsel for Defendants at a
status conference whether they were seeking an evidentiary hearing or whether, more broadly,
they were “asking [the Court] to do anything else from an evidentiary perspective[.]” Dkt. 133 at
16 (Hrg. Tr.). Counsel for each Defendant indicated on the record that they did not believe an
evidentiary hearing was necessary and that the Court could make any necessary findings on the
papers. Id.; see also id. at 27 (Hrg. Tr.).
Having reviewed the parties’ submissions, and in light of their representations on the
record, the Court finds that Defendants have not made the “exceedingly difficult” showing that
the government’s actions “were designed to punish [them] for asserting [their] legal rights.”
Meadows, 867 F.3d at 1311 (quotation marks omitted). As an initial matter, the parties dispute
whether Russo “agreed . . . that a twenty-year mandatory minimum was not appropriate in terms
of societal interest,” as Peed attests, Dkt. 103-1 at 2 (Peed Decl. ¶ 5), and the Court has no reason
to credit Peed’s version of the telephone conversation over Russo’s—or vice versa. The most
likely scenario is that Peed and Russo simply misunderstood one another. But the Court’s
determination need not turn on whether Russo made the alleged statement because, even if she
did, Defendants’ actual vindictiveness argument would fail.
To start, the Court is unpersuaded by the premise of Defendants’ argument. According to
Defendants, the “central question in a pretrial vindictiveness motion is whether a new charge
truly reflects ‘the prosecutor’s normal assessment of the societal interest in prosecution.’”
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Dkt. 103 at 9 (quoting Goodwin, 457 U.S. at 380 n.11). A more accurate statement of the law,
however, is that the central question is whether “[a] charging decision . . . results solely from the
defendant’s exercise of a protected legal right.” Goodwin, 457 U.S. at 380 n.11 (emphasis
added); see also Slatten, 865 F.3d at 799. To be sure, a prosecutor’s denial of any societal
interest in a charging decision may create an inference that the charge was brought for vindictive
reasons. But to show “actual vindictiveness,” a defendant must offer objective evidence—not
evidence that creates an inference—that a prosecutor “acted in order to punish him for standing
on his legal rights.” Meyer, 810 F.2d at 1245 (citing Goodwin, 457 U.S. at 380–81, 384 & n.19).
Here, there is no objective evidence (or, indeed, any evidence at all) that Russo was
motivated by Defendants’ decision to assert their rights to a speedy trial. Neither the Peed
declarations nor the Russo declaration even hints at any consideration of Defendants’ right to a
speedy trial. The Peed declaration itself provides a straightforward explanation: trial counsel had
concluded that “the facts met the elements of the offense,” and, even if “this case was not within
the heartland of kidnapping cases for which the mandatory minimum sentence was designed,”
Russo was inclined to defer to the request of trial counsel to supersede. See Dkt. 103-1 at 2
(Peed Decl. ¶ 5).
Crediting that description of the conversation, the Court finds that the decision to
supersede did not originate with Russo, but with trial counsel. There is no evidence, however,
that trial counsel believed that the enhancement was contrary to “society’s interest.” To the
contrary, trial counsel attests that she discussed with a “supervisory AUSA” the need to file a
superseding indictment adding the allegations required under 18 U.S.C. § 1201(g) months before
Defendants asserted their right to a speedy trial. Dkt. 172-1 at 1 (Buckner Decl. ¶ 3). Peed
attests that “government[] trial counsel did not dispute [his] assertion that the enhancement was
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not in society’s interest,” Dkt. 103-1 at 1 (Peed Decl. ¶ 3), but the failure to join issue with
opposing counsel during an informal conversation is a far cry from assent; were the law
otherwise, discussions between counsel would either become endless or would not occur at all.
In any event, there is no reason to believe that government trial counsel acted because (much less
“solely” because) Defendants asserted their speedy trial rights.
Accordingly, the Court concludes that Defendants have failed to show actual
vindictiveness here.
B. Presumption of Vindictiveness
The bulk of Defendants’ motion argues that a presumption of vindictiveness applies. “In
presumption cases, the Supreme Court has distinguished between pre-trial and post-trial
settings.” Slatten, 865 F.3d at 799 (citing Goodwin, 457 U.S. at 381). In the pre-trial context,
“‘the prosecutor’s assessment of the proper extent of prosecution may not have crystallized,’ so
an increase in charges may be the result of additional information or further consideration of
known information, rather than a vindictive motive.” Id. (quoting Goodwin, 457 U.S. at 381).
Moreover, the “routine exercise of many pre-trial rights also weakens any inference of
vindictiveness, i.e., that a prosecutor would retaliate simply because a defendant sought a jury
trial or pleaded an affirmative defense.” Id. Thus, in the pre-trial context, it is not enough for a
defendant to point to an increase in charges alone; rather, “a defendant must provide additional
facts sufficient to show that ‘all of the circumstances, when taken together, support a realistic
likelihood of vindictiveness.’” Id. (quoting Meyer, 810 F.2d at 1246). Put differently, a
defendant must point to “something more” than an increase in charges that followed the exercise
of his constitutional or statutory rights. Meadows, 867 F.3d at 1313.
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Here, Defendants rely on the following facts to show that “something more” than an
increase in charges occurred here: (1) the government’s decision to supersede and to bring a
charge carrying “a twenty-year mandatory minimum was announced just five days after the
defendants invoked their trial rights and the Court set a trial date, with no intervening events;”
(2) “it was based on information the government long knew;” (3) it “occurred with no prior
warning six months into the case;” and (4) it “was not a product of plea negotiations, which were
not occurring at the time.” 2 Dkt. 103 at 5. According to Defendants, “[t]hese circumstances
reflect, at a minimum, a realistic likelihood that the government was vindictively ‘upping the
ante’ in response to the defendants asserting their right to a speedy trial and obtaining a firm trial
date.” Id.
The problem with Defendants’ argument is that it is at odds with the Supreme Court’s
decision in United States v. Goodwin, 457 U.S. 368 (1982). There, the defendant was indicted
and convicted on a felony charge after he refused to accept a guilty plea and requested a trial by
jury on pending misdemeanor charges. Id. at 370. The defendant argued that the facts supported
a presumption of vindictive prosecution. Id. at 371. The Supreme Court disagreed on the
ground that “[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.” Id. at 382. In
other words, “[a]n initial decision should not freeze future conduct.” Id. Although there are
circumstances in which a defendant can show that a presumption of vindictiveness is warranted,
the defendant in Goodwin failed to make that showing because “the only evidence [the defendant
2
Defendants do not cite the telephone call between Peed and Russo as evidence that the
presumption of vindictiveness applies. Even if they had cited that conversation, however, the
Court would not place significant weight on that evidence in determining whether a presumption
of vindictiveness applies for the same reasons the Court cited in its discussion of actual
vindictiveness.
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was] able to marshal in support of his allegation of vindictiveness [was] that the additional
charge was brought at a point in time after his exercise of a protected legal right.” Id. at 382
n.15.
The pertinent facts that the Supreme Court rejected as insufficient in Goodwin are similar
to those that Defendants rely on here. In both cases, the government increased the charges
against the defendants shortly after they asserted their right to a jury trial. See id. at 371. In both
cases, moreover, the government brought additional charges against the defendants based on
facts that were known before they invoked their rights. See id. at 371 n.2 (listing the
prosecutor’s reasons for bringing increased charges). In neither case did the government warn
the defendants of the possibility that they might face increased charges if they chose to go trial.
And, in neither case did the government decide to bring additional charges as part of a plea
negotiation; in Goodwin, the defendant emphasized that “the additional charge . . . was brought
outside the context of plea negotiation.” Id. Against that backdrop, the Court concludes, as the
Supreme Court did in Goodwin, that the relevant circumstances fail to support a realistic
likelihood of prosecutorial vindictiveness.
Defendants argue that this case more closely resembles United States v. Meyer, 810 F.2d
1242 (D.C. Cir. 1987), a case in which the D.C. Circuit affirmed the dismissal of charges on
vindictive prosecution grounds. Meyer involved the prosecution of approximately 200 people
who were arrested for demonstrating outside of the White House. Id. at 1243. The government
presented the demonstrators with two options: (1) plead guilty and pay a $50 fine, or (2) proceed
to trial and face a $500 penalty and up to six months’ imprisonment. Id. at 1243–44. Thirty-six
demonstrators chose to go to trial, but the district court dismissed the increased charges against
them on the ground of prosecutorial vindictiveness, and the D.C. Circuit affirmed. Id. at 1244.
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In Meyer, the court of appeals began its analysis by comparing the case to Goodwin and “noting
a set of predicate facts that Goodwin and the case at bar [had] in common.” Id. at 1246. As here,
however, the court further recognized that “[t]hese circumstances alone, of course, fail to support
a realistic likelihood of prosecutorial vindictiveness.” Id.The court in Meyer went on to hold that “other circumstances in the case”—
circumstances that are not present here—“suggest[ed] a retaliatory motivation.” Id. (emphasis
added). The “most important” factor was “the government’s disparate treatment of the
defendants who elected to go to trial and the defendants who elected to forego their trial rights.”
Id. No such disparate treatment has occurred here; all three remaining Defendants face the
increased kidnapping charge. 3 Nor are the other facts that the court relied upon in Meyer present
in this case—namely, “[t]he simplicity and clarity of both the facts and law underlying [the]
prosecutions;” the government’s effort “to drop the charge that it had so recently added to each
information” at “the very beginning of the hearing on prosecutorial vindictiveness;” and the
government’s interest in avoiding “the annoyance and expense of prosecuting these minor cases
at a potentially drawn-out trial” involving thirty-six defendants. Id. at 1246–47. Indeed, the
Meyer court emphasized—and the D.C. Circuit subsequently confirmed—that the holding in
Meyer was “limited to the precise circumstances of [the] case.” Id. at 1248; see also Meadows,
867 F.3d at 1314 (“[T]he facts in Meyer were unusual.”). In light of the absence of similar
circumstances here, the Court has little difficulty concluding that Meyer is inapposite.
Defendants’ reliance on Simms v. United States, 41 A.3d 482 (D.C. 2012), is equally
misplaced. In Simms, the District of Columbia Court of Appeals held that the trial court erred by
3
Although the case has been resolved as to Hawkins, see Minute Entry (Jan. 31, 2022), she was
never charged with kidnapping under federal law. Furthermore, Hawkins was charged in the
superseding indictment with a minor victim enhancement under D.C. law. See Dkt. 90 at 2.
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failing to apply a presumption of vindictiveness. Id. at 483. Some of the circumstances that
arose in Goodwin, Meyer, and this case were present in Simms, but one “additional fact . . .
tip[ped] the balance” in favor of applying the presumption of vindictiveness: the government’s
“announcement that it [was] ready to try [the] case.” Id. at 491. In Simms, the parties had
appeared in court for what should have been the first day of trial; at that point, the government
announced “unequivocally” that it was ready to proceed to trial, but the defense “informed the
court that it was not ready,” which resulted in a continuance. Id. at 484–85. Four days later, the
government brought increased charges against the defendant. Id. at 485. The court considered
that fact dispositive because, in its view, “the very reasons the Supreme Court [in Goodwin]
determined that the application of a presumption of vindictiveness should be limited pretrial[] do
not pertain” when the government “signal[s] that it believes that the back-and-forth of pretrial
litigation is over.” Id. at 491.
Simms is distinguishable from this case. Unlike in Simms, prior to superseding the
indictment, the government had not “unequivocally” announced that it was ready to proceed to
trial—and indeed, to date, it has not done so. To be sure, the government has at times
represented that it would be ready, if necessary, to proceed to trial if the Court set a trial date
over its objections. See Dec. 3, 2021 Hrg. Tr. (Rough at 17–18). But the government also
represented that it needed more time. During the hearing in which the Court set the February 7,
2022 trial date, for example, the prosecutor represented that “DNA testing is still pending and
there’s still discovery to turn over” and that “[t]he [g]overnment’s investigation is ongoing.” Id.(Rough at 14–15). Moreover, the government subsequently moved to continue that trial date.
Dkt. 83. Accordingly, Simms is unhelpful to Defendants.
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At bottom, for the presumption of vindictiveness to apply, Defendants must provide
evidence of “something more” than an increase in charges following the invocation of a legal
right. Meadows, 867 F.3d at 1313. In Meyer and Simms, unusual circumstances provided the
“something more.” The same is not true here. Defendants, accordingly, have failed to show that
the presumption applies.
Because the Court concludes that the presumption of vindictiveness does not apply, it
need not assess whether the government has “come forward with objective evidence justifying
[its] prosecutorial action.” Meyer, 810 F.2d at 1245. But, in any event, the government’s
explanation of its decision to supersede is convincing. The prosecutor in this case, Assistant
U.S. Attorney Angela Buckner, explained the government’s position at length at a hearing before
the Court, see Dkt. 126 at 70–73 (Hrg. Tr.), and in a written declaration, see Minute Entry
(Feb. 1, 2022); Dkt. 172-1 (Buckner Decl.). According to Buckner, on June 22, 2021, “the night
before the detention hearings, [she] realized that the rebuttable presumption under the [Bail
Reform Act] was not applicable because the indictment did not charge kidnapping of a minor.”
Dkt. 172-1 at 1 (Buckner Decl. ¶ 2). Following that realization, she and her colleagues
“collectively noted that not including the language [in the original indictment] regarding the
victim’s status as a minor was unintentional and an error,” and they “agreed that [they] would
eventually have to supersede the indictment, adding both the requisite language regarding the
victim’s age and subsection (g) of [Section 1201].” Id. (Buckner Decl. ¶ 3). But, “[b]ecause [the
government] hoped to identify additional perpetrators and bring charges as appropriate, [it]
waited to supersede the indictment” while its investigation continued. Id. ¶ at 2 (Buckner Decl.
¶ 5). In other words, the government “made a judgment call regarding how many different times
[it was] going to supersede the indictment, hoping to supersede once with all of the information
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that [it] had planned to add to the case.” Dkt. 126 at 71–72 (Hrg. Tr.). “Once the trial date was
set,” the government “had to stop [its] investigation and make some decisions.” Id. at 72 (Hrg.
Tr.). One of those decisions was to supersede the indictment. Id. The Court sees no reason to
doubt this explanation, made under the penalty of perjury, and it lends further support to the
Court’s conclusion that the second indictment was not “more likely than not attributable to . . .
vindictiveness.” Meadows, 867 F.3d at 1311 (quoting Gary, 291 F.3d at 34).
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the motions to join in Defendant
Allgood’s motion to dismiss, Dkt. 109; Dkt. 110, are GRANTED, and the motion to dismiss for
vindictive prosecution, Dkt. 103, is DENIED.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: July 7, 2022
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