USA v. Pettus

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
CORNELIUS AARON PETTUS,
JR.,
Defendant.
Case No. 3:20-cr-00100-SLG-MMS
ORDER RE MOTION TO DISMISS FOR VINDICTIVE PROSECUTION
Before the Court at Docket 42 is defendant Cornelius Aaron Pettus, Jr.’s
Motion to Dismiss for Vindictive Prosecution. The government responded in
opposition at Docket 43.
An Indictment was filed in October 2020 charging Mr. Pettus, in Count I, with
willfully using unconstitutionally excessive force in his official capacity as a police
officer on September 30, 2019, in violation of 18 U.S.C. § 242, which carries a
maximum sentence of ten years.1 A First Superseding Indictment was filed in
September 2021, which added Count II, charging Mr. Pettus with the falsification
of records in connection with a federal investigation in violation of 18 U.S.C. §
1519, which carries a maximum sentence of twenty years.2
1 Docket 2 (Indictment).
2 Docket 38 (First Superseding Indictment).
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Mr. Pettus now moves to dismiss Count II. He asserts that the government
vindictively charged him with Count II after he rejected two plea offers and elected
to exercise his constitutional right to a jury trial on Count I.3
LEGAL STANDARD
“A prosecutor violates due process when he seeks additional charges solely
to punish a defendant for exercising a constitutional or statutory right.”4 “A
defendant may establish vindictive prosecution . . . by showing that the
circumstances establish a ‘reasonable likelihood of vindictiveness,’ thus giving rise
to a presumption that the Government must in turn rebut.”5
“[T]he appearance of vindictiveness results only where, as a practical
matter, there is a realistic or reasonable likelihood of prosecutorial conduct that
would not have occurred but for hostility or a punitive animus toward the defendant
because he has exercised his specific legal rights.”6 “In our system, so long as the
3 See Docket 42.
4 United States v. Kent, 649 F.3d 906, 912 (9th Cir. 2011) (quoting United States v. Gamez–
Orduno, 235 F.3d 453, 462 (9th Cir. 2000)).
5 Id. at 912–13 (quoting United States v. Goodwin, 457 U.S. 368, 373 (1982)); accord United
States v. Brown, 875 F.3d 1235, 1240 (9th Cir. 2017).
A defendant “may [also] establish prosecutorial vindictiveness by producing direct evidence of
the prosecutor’s punitive motivation towards her.” United States v. Jenkins, 504 F.3d 694, 699
(9th Cir. 2007). However, Mr. Pettus’s “motion is not premised on the basis of direct evidence of
vindictiveness or retaliatory intent by the United States.” Docket 42 at 5.
6 United States v. Gallegos-Curiel, 681 F.2d 1164, 1169 (9th Cir. 1982) (citing Goodwin, 457 U.S.
at 373); Jenkins, 504 F.3d at 694 (“Rather, she must demonstrate a reasonable likelihood that
the government would not have brought the alien smuggling charges had she not elected to
testify at her marijuana smuggling trial and present her theory of the case.” (emphasis in
original)).
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prosecutor has probable cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute, and what charge to
file . . . generally rests entirely in his discretion.”7
DISCUSSION
Mr. Pettus contends that he is entitled to a presumption of vindictiveness
here because the government presented him with two plea offers, both of which
informed him that the government intended to seek the additional, more serious
Count II charge if he did not enter into the plea agreement, and that, after he
rejected the plea offers, the government filed the superseding indictment with
Count II, even though it could have sought to include this count in the original
indictment.8
The Supreme Court addressed a similar situation in Bordenkircher v. Hayes:
The respondent, Paul Lewis Hayes, was indicted by a Fayette County,
Ky., grand jury on a charge of uttering a forged instrument in the
amount of $88.30, an offense then punishable by a term of 2 to 10
years in prison. After arraignment, Hayes, his retained counsel, and
the Commonwealth’s Attorney met in the presence of the Clerk of the
Court to discuss a possible plea agreement. During these
conferences the prosecutor offered to recommend a sentence of five
years in prison if Hayes would plead guilty to the indictment. He also
said that if Hayes did not plead guilty and “save[d] the court the
inconvenience and necessity of a trial,” he would return to the grand
jury to seek an indictment under the Kentucky Habitual Criminal Act,
which would subject Hayes to a mandatory sentence of life
imprisonment by reason of his two prior felony convictions. Hayes
7 Nunes v. Ramirez-Palmer, 485 F.3d 432, 441 (9th Cir. 2007) (quoting Bordenkircher v. Hayes,
434 U.S. 357, 364 (1978)).
8 Docket 42 at 5–6.
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chose not to plead guilty, and the prosecutor did obtain an indictment
charging him under the Habitual Criminal Act. It is not disputed that
the recidivist charge was fully justified by the evidence, that the
prosecutor was in possession of this evidence at the time of the
original indictment, and that Hayes’ refusal to plead guilty to the
original charge was what led to his indictment under the habitual
criminal statute.9
The Supreme Court held that “the course of conduct engaged in by the prosecutor
in this case, which no more than openly presented the defendant with the
unpleasant alternatives of forgoing trial or facing charges on which he was plainly
subject to prosecution, did not violate the Due Process Clause of the Fourteenth
Amendment.”10 The Supreme Court’s holding in Bordenkircher established that
this type of plea-bargaining strategy does not amount to punishment or retaliation,
“so long as the accused is free to accept or reject the prosecution’s offer.”11
The relevant facts of this case are quite similar to those in Bordenkircher.
The government informed Mr. Pettus of its intent to bring the additional more
serious charge if he rejected a plea agreement even though the government could
have justified its charging decision had it brought the more serious charge in the
original indictment. Mr. Pettus was free to accept or reject the plea offers, and
opted to reject them. The government then filed the superseding indictment that
included Count II. Bordenkircher is controlling here—the government’s pursuit of
9 434 U.S. at 358–59.
10 Id. at 365.
11 Id. at 363.
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the additional charge did not violate the Constitution.12
The Court also finds Mr. Pettus’s specific arguments unavailing. The
primary case cited by Mr. Pettus, United States v. Jenkins, is inapposite.13 There,
the defendant testified at her own trial and was charged with additional crimes
while the jury was deliberating.14 The Ninth Circuit upheld the district court’s
explanation that its dismissal of the additional charge “was a ‘prophylactic’
measure intended to prevent the chilling of a defendant’s ability to take the witness
stand.”15 Because Mr. Pettus’s trial has not started and he has not testified, the
procedural posture of this case is considerably more similar to Bordenkircher than
to Jenkins.
Mr. Pettus also appears to suggest that the government’s filing of the
superseding indictment subsequent to his submission of an expert witness report,
which purportedly exculpates him, raises a presumption of vindictiveness.16
However, as Mr. Pettus concedes, the government first informed him of its intent
to file the additional charge prior to his submission of the expert witness report.17
12 See also Kent, 649 F.3d at 913 (“Also, in the plea negotiation context, the prosecutor's latitude
to threaten harsher charges to secure a plea agreement advances the interest in avoiding trial
shared by the prosecutor, defendant, and public.”).
13 504 F.3d 694 (9th Cir. 2007).
14 Id. at 697.
15 Id. at 699, 702.
16 See Docket 42 at 2–3.
17 See Docket 42 at 2–3 (discussing the March 10, 2021 first proposed plea agreement, which
contained notice of the government’s intent to consider a superseding indictment, and the
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Mr. Pettus further asserts a presumption of vindictiveness because “[i]n its
threats to seek additional, more serious charges against Pettus, the United States
did not provide any explanation that it had obtained or was seeking additional
information to support the additional, more serious charges.”18 But there was no
additional evidence in Bordenkircher either; a presumption of vindictiveness does
not arise whenever no new evidence or information has been obtained prior to the
filing of additional charges.19
Lastly, Mr. Pettus asserts that he has not “received the presumption that he
discharged his duties properly” and that, “[u]nder the[se] circumstances, the United
States is not entitled to the presumption that it acted properly in threatening Pettus
with more serious charges if he did not accept its plea agreement proposal.”20 Mr.
Pettus cites no legal authority to support this proposition, and the Court declines
to adopt his reasoning.
In conclusion, the Court finds that Mr. Pettus has not demonstrated a
reasonable likelihood of vindictiveness with respect to the filing of the First
August 17, 2021 expert witness report).
18 Docket 42 at 5–6.
19 See also Kent, 649 F.3d at 913 (“For good reasons, the Supreme Court has urged deference
to pretrial charging decisions. ‘In the course of preparing a case for trial, the prosecutor may
uncover additional information that suggests a basis for further prosecution or he simply may
come to realize that information possessed by the State has a broader significance. At [the
pretrial] stage ..., the prosecutor’s assessment of the proper extent of prosecution may not have
crystalized.’” (quoting Goodwin, 457 U.S. at 381)).
20 Docket 42 at 6.
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Superseding Indictment.
CONCLUSION
In light of the foregoing, IT IS ORDERED that the motion at Docket 42 is
DENIED.
DATED this 15th day of December, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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