It’s Not the Second Circuit, But . . .

In this noteworthy ruling, the Sixth Circuit upheld a district court’s decision to dismiss an indictment in a child pornography downloading case based on prosecutorial vindictiveness.  

The defendant was originally charged with one count of possessing child pornography (18 U.S.C. 2252A(a)(5)(A)), which carried a statutory sentencing range of zero to ten years of imprisonment. After the district court granted the defendant’s motion to suppress, the government secured a superseding indictment charging the defendant with a conspiracy offense based on evidence that had been in the government’s possession since before the initial indictment. But rather than charging the defendant in the superseding indictment with conspiracy to possess child pornography, the government charged him instead with conspiracy to receive child pornography – a crime that subjected the defendant to a five-to-twenty-year prison term instead of the previously applicable zero-to-ten-year term.

The district court dismissed the superseding indictment, holding that the government’s decision to change to a receipt theory warranted a presumption of prosecutorial vindictiveness, which the government had failed to rebut.

On the government’s appeal, the Sixth Circuit affirmed, holding that the district court’s decision to dismiss was not an abuse of discretion.