United States v. Booher

528 F.Supp.3d 840

UNITED STATES of America, Plaintiff,

v.Kent Lowery BOOHER, Defendant.

No.: 3:19-CR-161-TAV-HBG-1

United States District Court, E.D. Tennessee.

Filed March 24, 2021

Jennifer Kolman, U.S. Department of Justice (Knox USAO) Office of U.S. Attorney, Knoxville, TN, for Plaintiff.

MEMORANDUM OPINION AND ORDER

Thomas A. Varlan, UNITED STATES DISTRICT JUDGE

This criminal matter is before the Court on defendant's Motion to Dismiss [Doc. 33], in which he seeks dismissal of Counts Three, Four, and Five of the First Superseding Indictment on the grounds of prosecutorial vindictiveness in violation of the Fourteenth Amendment.¹ The government responded in opposition [Doc. 35], and defendant has replied [Doc. 38]. This matter is now ripe for the Court's review. For the reasons below, defendant's Motion to Dismiss [Doc. 33] is DENIED .

I. Background

In September 2019, a federal grand jury returned an indictment against defendant, charging him with enticement of a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b) (Count One), and committing a felony offense under 18 U.S.C. § 2422 while required to register as a sex offender, in violation of 18 U.S.C. § 2260A (Count Two) [Doc. 3]. The Court appointed federal public defender Benjamin Sharp to represent defendant [Doc. 7], and defendant was ordered detained [Doc. 9]. On September 20, 2019, the Court entered a scheduling order setting the trial of this matter for November 25, 2019 [Doc. 10, p. 5]. The Court also stated that all motions, except for motions in limine , should be filed no later than October 18, 2019, and a party seeking an extension of the deadline for filing a pretrial motion should file a motion for an extension before the expiration of the relevant deadline [Id. at 4]. On October 24, 2019, after the expiration of the pretrial motion deadline, United States Magistrate Judge H. Bruce Guyton entered a pretrial order, stating "[n]o more motions, except for motions in limine , will be allowed to be filed in this cause of action by either side without prior leave of Court" [Doc. 12, p. 2].

On November 19, 2019, a federal grand jury returned the First Superseding Indictment which charged defendant with the same Counts One and Two as the original Indictment, but also charged the defendant with sex trafficking of a child, in violation of 18 U.S.C. §§ 1591(a)(1), (b)(2), and (c) (Count Three), attempted production of child pornography, in violation of 18 U.S.C. § 2251 (Count Four), and enticement of a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b) (Count Five) [Doc. 14]. In light of the First Superseding Indictment, the Court reset the trial of this case to April 7, 2020, and reset the pretrial motions deadline to January 3, 2020 [Doc. 17].

On January 3, 2020, defendant moved to continue the pretrial motions deadline by fourteen (14) days [Doc. 18]. The Court granted the motion and reset the deadline to January 31, 2020 [Doc. 19]. On January 31, 2020, after no pretrial motions were filed, Judge Guyton entered a Second Pretrial Order, again stating "[n]o more motions, except for motions in limine , will be allowed to be filed in this cause of action by either side without prior leave of Court" [Doc. 20, p. 2].

On April 3, 2020, the Court sua sponte continued the trial to June 9, 2020, in light of the Court's Standing Order 20-06 which instructed that all jury trials scheduled to commence from March 16, 2020 through April 24, 2020 were to be continued in light of the COVID-19 pandemic [Doc. 21].

On May 12, 2020, defendant filed another motion to continue, contending that counsel needed additional time to investigate in light of the COVID-19 pandemic, and requesting a new trial date in September 2020 [Doc. 22]. Defendant also requested that "all other deadlines be extended as well" [Id. at 1]. The Court granted this motion and continued the trial to September 15, 2020 [Doc. 23]. The Court also extended the plea agreement deadline but did not address any other deadlines [Id. ].

On August 25, 2020, the parties jointly moved to continue the trial, stating that additional time was needed to prepare in light of the COVID-19 pandemic [Doc. 24]. The Court granted this motion and reset the trial for December 7, 2020, and reset the plea agreement deadline accordingly, but did not extend any other deadlines [Doc. 25].

On December 3, 2020, the Court sua sponte continued the trial to January 26, 2021, in light of the ongoing nature of the COVID-19 pandemic and Standing Order 20-19, which placed restrictions on visitors to the Court, including jurors [Doc. 26]. The Court extended the plea agreement deadline but did not extend any other deadlines [Id. ].

Thereafter, on December 28, 2020, Mr. Sharp, at defendant's request, filed a motion to appoint substitute counsel, due to defendant's belief that it would be in his best interest to have new counsel appointed to represent him in this case [Doc. 27]. After a hearing on the matter, on January 5, 2021, Judge Guyton granted the motion to substitute counsel and appointed attorney Russell Greene to represent defendant under the Criminal Justice Act, 18 U.S.C. § 3006A [Doc. 31]. On January 8, 2021, the Court again sua sponte continued the trial of this matter to April 13, 2021, in light of Standing Order 21-01, which continued all jury trials scheduled to commence through February 28, 2021 [Doc. 32]. The Court did not extend the plea agreement deadline, which had expired on December 28, 2020, or any other deadlines [Id. ].

On March 5, 2021, defendant filed the instant motion to dismiss Counts Three, Four and Five [Doc. 33]. According to the parties’ briefs, in 2012, defendant was charged in Loudon County, Tennessee with three counts of aggravated statutory rape, two counts of statutory rape, and one count of aggravated sex exploit of a minor [Doc. 33-1, p. 2]. In 2014, he pled guilty to the two statutory rape charges and received a suspended sentence of three years’ probation [Doc. 33-1, p. 2; Doc. 35-1]. The remaining counts were dismissed [Id. ]. The parties agree that Counts Three, Four and Five of the First Superseding Indictment are related to the same victim involved in these Loudon County convictions [Doc. 33-1, p. 2; Doc. 35, p. 4].

II. Analysis

A. Timeliness

The Court first notes that a claim of vindictive prosecution is properly raised in a pretrial motion pursuant to Rule 12(b)(3). See Fed. R. Crim. P. 12(b)(3)(A)(iv). If a party does not meet the deadline for filing a motion under Rule 12(b)(3), the motion is untimely, but the court may consider the defense, objection, or request if the party shows good cause. Fed. R. Crim. P. 12(c)(3). "Good cause" is a flexible standard that is "heavily dependent on the facts of the particular case," but, at minimum, it requires the moving party to articulate some legitimate explanation for the failure to timely file. United States v. Walden , 625 F.3d 961, 965 (6th Cir. 2010).² The Sixth Circuit has held that, if the failure to timely file occurred as a result of a lawyer's conscious decision not to file a pretrial motion before the deadline, the party will not be able to establish good cause. Id. In so holding, the Court cited United States v. Garcia , 528 F.3d 481, 484–85 (7th Cir. 2008), in which the Seventh Circuit affirmed the district court's finding that switching lawyers was not good cause for filing an untimely pretrial motion. Id.

Here, defendant's motion to dismiss Counts Three, Four, and Five on the ground of prosecutorial vindictiveness is clearly untimely, as the last reset pretrial motions deadline expired on January 31, 2020 [Doc. 19], and when that deadline elapsed, the Court entered a pretrial order stating that no further motions, other than motions in limine , would be allowed without leave of Court [Doc. 20, p. 2]. Defendant now files this pretrial motion more than a year after the pretrial motion deadline expired, and with just over a month remaining before the presently scheduled trial date. Moreover, defendant does not even request leave of Court to file this out-of-time pretrial motion, and this alone is sufficient cause to deny the motion.

Even applying the good cause standard, defendant has not met his burden to articulate a legitimate explanation for his failure to timely file the instant motion, as he has not even addressed untimeliness of his motion, nor less provided any explanation for the belated filing. The Court notes that the First Superseding Indictment, which first added the counts that defendant now seeks to challenge, was filed in November 2019 [Doc. 14], more than fifteen (15) months before defendant filed this motion to dismiss. Moreover, to the extent that defendant would seek to rely on the recent appointment of his current counsel in January 2021 [Doc. 31], the Sixth Circuit has implied that the appointment of new counsel is insufficient to establish good cause. See Walden , 625 F.3d at 965 (citing Garcia , 528 F.3d at 484-85 ). Accordingly, the Court finds that defendant has not met his burden of establishing good cause to excuse his untimely filing, and his motion is due to be dismissed as untimely under Rule 12(c)(3).

Nevertheless, for the sake of completeness, the Court will address the merits of defendant's motion to dismiss.

B. Prosecutorial Vindictiveness

Defendant argues that he can establish a presumption of vindictiveness in this case because the government replaced the original Indictment with the First Superseding Indictment, which contained more severe counts, after defendant rejected an initial plea offer [Doc. 33-1, pp. 2, 4]. He contends that the First Superseding Indictment allowed the government to avoid the previously scheduled November 2019 trial date, and significantly increased the potential prison time that he faces [Id. at 4]. Defendant opines that the government brought the First Superseding Indictment because they feel that he did not receive a severe enough punishment for his...