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United States v. Obie

United States District Court, N.D. Georgia, Atlanta Division

November 19, 2018

UNITED STATES OF AMERICA,
v.
QUINTAVIOUS OBIE (1), Defendant.

          FINAL REPORT AND RECOMMENDATION

          JOHN K. LARKINS III UNITED STATES MAGISTRATE JUDGE.

         This case is before the Court on Defendant Quintavious Obie's Motion to Dismiss for Prosecutorial Vindictiveness. [Doc. 173.] For the reasons that follow, it is RECOMMENDED that the motion be DENIED.

         I. Background

         On January 9, 2018, a grand jury seated in the Northern District of Georgia returned an indictment against Obie, charging him with five counts of human trafficking in violation of 18 U.S.C. § 1591(a) and (b)(1), with each count involving a different purported victim. [Doc. 13.] Obie has been detained pending trial. [Doc. 25.] In July 2018, the case was set for trial on September 10, 2018. [Doc. 57.]

         On August 14, 2018, the government moved to continue the trial. [Doc. 68.] The government explained that it had not sought a continuance at an earlier date because defense counsel informed the government in July 2018 that he would be seeking a continuance, but did not do so, and only informed the prosecutors that “he would no longer be seeking a continuance of trial” during the first week of August. [Doc. 68 at 1-2.] The government also noted that one of the two prosecutors assigned to the case had just returned from maternity leave, that the other prosecutor had a sensitive personal matter that required her attention in mid-September, and that one of the alleged victims in the case was pregnant, making travel difficult for her. [Id. at 2.] Notably, the government also stated that it intended to seek a superseding indictment, “to add additional charges, ” within the next week. [Id.] Finally, the government wrote:

Government counsel inquired whether Obie would oppose a continuance of trial. Defense counsel said that he must confer with Obie. Thus, the government does not know at this time whether Obie would oppose a continuance.

[Id. at 3.]

         As forewarned in the motion for continuance, on August 21, 2018, the government obtained a superseding indictment. [Doc. 71.] The superseding indictment removed one sex trafficking count, but also added DuBose as a defendant and asserted witness tampering charges against both Obie and DuBose. [Id.] Three days later, Obie filed his response in opposition to the government's request for a continuance. [Doc. 78.] The Court first reset the trial date to October 15, 2018, and then on October 3, 2018, reset the trial a second time, to October 29, 2018.[1] [Doc. 95; Doc. 112.]

         On October 17, 2018, the government obtained a second superseding indictment [Doc. 139], adding one additional sex trafficking charge against Obie and modifying slightly the pertinent geographic area in which the alleged sex trafficking occurred [compare id., with Doc. 71]. Three days later, the government also moved to disqualify Obie's lead defense counsel, Richard Rice, from the case on the grounds that he personally attempted to obtain exonerating statements from alleged victims, and would therefore inevitably become an “unsworn witness” at trial. [Doc. 146.]

         On November 16, 2018, while the disqualification motion remained pending, Obie filed the present motion to dismiss the claims against him due to prosecutorial vindictiveness. [Doc. 173.] Obie argues that the government obtained the two superseding indictments against him to “punish [him] for his exercise of his right to a jury trial and refusal to consent to a continuance [of trial].” [Doc. 173 at 11.] He maintains that since the government was “fully aware of all the alleged conduct underlying the new charges” and only presented the superseding indictments after he opposed the motion for continuance, the “inexorabl[e] . . . conclusion” is that he was punished for exercising his protected right. [Id.] Combined with other evidence-in particular, the fact that the government contacted an alleged victim, H.T., who was represented by counsel in relation to a prostitution charge, without consent of her counsel-Obie contends, makes a finding of “actual vindictiveness [] inescapable.” [Id. at 4-5, 11-12.]

         II. Discussion

         A. Applicable Standard

         As a general rule, “[a]s long as the prosecutor has probable cause to believe the accused has committed a crime, the courts have no authority to interfere with a prosecutor's decision to prosecute.” United States v. Barner, 441 F.3d 1310, 1315 (11th Cir. 2006). There is nothing unusual or improper about superseding an indictment with new charges and/or defendants. Indeed, it is quite common for the government to supersede an indictment in order to add information acquired during a continuing investigation. But where a prosecutor makes a charging decision to improperly punish a defendant for simply exercising a protected statutory or constitutional right, the defendant's right to due process is violated. United States v. Kendrick, 682 F.3d 974, 981 (11th Cir. 2012) (citations omitted).

         “There are two ways to prove a prosecutorial vindictiveness claim: (1) by showing that a presumption of vindictiveness arises from the government's conduct; or (2) by showing actual vindictiveness.” United States v. Marks, No. 11-80072-CR, 2013 WL 4516760, at *1 (S.D. Fla. Aug. 14, 2013), report and recommendation adopted, 2013 WL 4502309 (S.D. Fla. Aug. 23, 2013); see also United States v. Brown, 862 F.Supp.2d 1276, 1289 (N.D. Ala. 2012), aff'd, 516 Fed.Appx. 872 (11th Cir. 2013). In the pretrial setting, there is no presumption of vindictiveness just because the government supersedes an indictment-even multiple times-after a defendant has exercised a legal right. Barner, 441 F.3d at 1316 (“While a prosecutor's decision to seek heightened charges after a successful post-trial appeal is enough to invoke a presumption of vindictiveness, ‘proof of a prosecutorial decision to increase charges after a defendant has exercised a legal right does not alone give rise to a presumption in the pretrial context.'”) (quoting U ...


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