[00:00:17] Speaker 00:
and I'm here on behalf of Appellant Barry Knight.

[00:00:21] Speaker 00:
I'd like to reserve four minutes for a bottle and I'll keep an eye on the clock.

[00:00:25] Speaker 00:
I welcome questions on other issues in the briefing, including the issues that Your Honors have been discussing with my colleague, but I would like to focus today on vindictive prosecution.

[00:00:45] Speaker 00:
The government in its September 19th letter said, if a pretrial motion is filed in this case, we will return to the grand jury and seek a superseding indictment.

[00:01:01] Speaker 00:
And then the government filed a pre-trial motion.

[00:01:18] Speaker 00:
That's how the government asks this court to read the September 19th letter, but that reading isn't supported by the objective evidence in the record for a couple of reasons.

[00:01:28] Speaker 00:
First, the September 19th letter, unlike some earlier informal communications, did not say anything about plea negotiations.

[00:01:38] Speaker 00:
But also the letter said,

[00:01:40] Speaker 00:
Let us, the government, know if your client wants to plead guilty without a plea agreement.

[00:01:46] Speaker 00:
So the government can quibble about when exactly plea negotiations ended, whether they ended in September 2021 or June 2022, or even earlier in September 2022.

[00:01:58] Speaker 00:
But by the time the government sent that letter on September 19th, there were no longer plea negotiations on the table.

[00:02:13] Speaker 00:
That could happen.

[00:02:16] Speaker 01:
That just could happen.

[00:02:17] Speaker 01:
It doesn't seem to me to be an unlikely possibility.

[00:02:20] Speaker 00:
Not in this case, Your Honor.

[00:02:22] Speaker 00:
And we know that because Mr. Knight tried.

[00:02:25] Speaker 00:
And this came out in the transcript of calendar call where defense counsel said we approached the government not for a plea negotiation about getting an extra benefit, but just a guilty plea

[00:02:41] Speaker 00:
that preserved our right to appeal the issue with the continuance and the issue with the motion to compel, and the government said no.

[00:02:51] Speaker 00:
So the motion to compel was the pivotal issue in this case that led to the additional charge.

[00:02:59] Speaker 00:
that the government sees in every case.

[00:03:01] Speaker 00:
It was a motion that the government has been fighting in this case, in this district, and across the country.

[00:03:08] Speaker 00:
The government did not want to turn over information about torrential downpour for whatever reason and threatened an additional charge for filing a motion to compel.

[00:03:18] Speaker 00:
Because there were no plea negotiations going on at that time,

[00:03:25] Speaker 00:
The additional charge is because Mr. Knight exercised his right to file a pretrial motion, and under this court's precedent and Supreme Court precedent, that's vindictive and it violated Mr. Knight's

[00:03:59] Speaker 00:
Your Honor, the government relies heavily on that case and that language from other cases, but we're not asking this court to presume vindictiveness simply from the timeline here, that he filed the pretrial motion and then the new charge was sought.

[00:04:17] Speaker 00:
This court has said that the timeline alone is not enough for the presumption.

[00:04:24] Speaker 00:
Direct evidence is analyzed differently, but for the presumption,

[00:04:29] Speaker 00:
The timeline is not enough, but it can be strong evidence.

[00:04:32] Speaker 00:
This court has even said it can be overwhelming evidence raising a presumption.

[00:04:37] Speaker 00:
And here we have the timeline.

[00:04:40] Speaker 00:
We also have the express threat in the September 19th letter.

[00:04:45] Speaker 00:
And there's other objective facts in the record that raise the

[00:04:55] Speaker 00:
evidence.

[00:04:57] Speaker 00:
So the two charges were based on the same investigation, the same underlying facts, the same prosecutor, and the same investigating agency.

[00:05:07] Speaker 00:
So this isn't a case where just by a coincidence

[00:05:13] Speaker 00:
the defendant filed a pretrial motion and then a new charge was added later.

[00:05:18] Speaker 00:
This is a case where all of the facts support a finding of vindictiveness here, including the government's own language in its September 19th letter.

[00:05:28] Speaker 02:
But if the government could have charged initially with additional crimes, I mean, where's the vindictiveness of that?

[00:05:34] Speaker 02:
They chose not to, and then later just picked up where it could have done in the first instance.

[00:05:40] Speaker 00:
What this court has said is that the vindictive prosecution doctrine is a limit on the government's discretion.

[00:05:47] Speaker 00:
So of course the government can make their charging decisions in the beginning with the hope that plea negotiations will be fruitful.

[00:05:55] Speaker 00:
The government can add charges later when those plea negotiations fall through.

[00:06:01] Speaker 00:
But what the government can't do is condition a new charge

[00:06:06] Speaker 00:
on the filing of a pretrial motion, not on plea negotiations falling through.

[00:06:50] Speaker 01:
That basically saying if we're going to go through all this work of doing the prep for trial, you're going to lose the acceptance of responsibility.

[00:07:05] Speaker 01:
You can still get that.

[00:07:06] Speaker 01:
You won't have a formal plea agreement, but it's essentially a form of plea agreement.

[00:07:11] Speaker 01:
If at this point you're still going to be able to get the reduction for acceptance responsibility, you'll avoid the higher charge because I'm telling you now if you

[00:07:21] Speaker 01:
take this case to trial and do all this work, I'm going to do it right and I'm going to add the extra charge.

[00:07:27] Speaker 01:
Why isn't that a sort of de facto plea offer?

[00:07:33] Speaker 00:
Because what this court looks to and what the Supreme Court looks to is actual plea negotiations with a give and take between the two sides, not unilateral action on the part of the government.

[00:07:46] Speaker 00:
So in any case, a defendant can plead guilty without a plea agreement.

[00:07:51] Speaker 00:
A defendant choosing not to do that doesn't justify new charges under this exception to the doctrine for pretrial negotiations.

[00:08:03] Speaker 00:
And there are cases where it's a hard question whether there are actual plea negotiations going on.

[00:08:09] Speaker 00:
Kent, I believe, is an example of that, where the defendant argued there were not explicit plea negotiations, and this court said you don't need explicit plea negotiations.

[00:08:20] Speaker 00:
But here, this court doesn't need to draw the line between potential negotiations and actual negotiations because there were not even potential negotiations on September 19th.

[00:08:32] Speaker 01:
This is an offer.

[00:08:33] Speaker 01:
It's an offer the charge won't get added.

[00:08:50] Speaker 01:
That's an offer.

[00:08:52] Speaker 00:
That language can't be read separately from the earlier sentence about filing or seeking the superseding indictment as Mr. Knight filed a pretrial motion.

[00:09:04] Speaker 01:
Well, because it means you're going to make me do the work on this case.

[00:09:09] Speaker 01:
You're going to make me file an opposition in the

[00:09:17] Speaker 01:
avoid all that work, you'll get a deal.

[00:09:21] Speaker 01:
You won't get this extra charge, you'll get the two points.

[00:09:24] Speaker 01:
That's a plea offer.

[00:09:25] Speaker 00:
I agree with Your Honor that the government, that this letter can be read as the government saying, we want to avoid this extra work.

[00:09:35] Speaker 00:
But that's not the test for vindictive prosecution.

[00:09:38] Speaker 00:
The test asks whether

[00:09:42] Speaker 00:
negotiation and telling a defendant that he can plead guilty without a plea agreement to get acceptance of responsibility, but only if he does not file a pretrial motion, that's not a give and take negotiation.

[00:09:56] Speaker 00:
A defendant can plead guilty without a plea agreement on his own without

[00:10:05] Speaker 00:
But if that was the test, then the government in any case could say, if you file a pretrial motion, because we have to respond to that, and because we have to start preparing for a trial at that point,

[00:10:21] Speaker 00:
then we're going to add a new charge.

[00:10:23] Speaker 00:
And that's not the test, because that would chill defendants from exercising their right to file these types of pretrial motions.

[00:10:31] Speaker 00:
And that's what the Supreme Court in Blackledge was trying to prevent, chilling defendants from exercising their pretrial rights.

[00:10:38] Speaker 01:
Why isn't this like board and character then?

[00:10:41] Speaker 00:
Because there is no ongoing clean negotiation with a give and take.

[00:10:47] Speaker 00:
because there are two sides at the bargaining table.

[00:10:51] Speaker 00:
Now what the bargaining looks like in a particular case is going to vary depending on the facts.

[00:10:56] Speaker 00:
But what the Supreme Court has said is we make this exception for plea bargaining because it benefits both sides.

[00:11:03] Speaker 00:
The government gets to avoid the work of a trial.

[00:11:06] Speaker 00:
The defendant gets some benefit here.

[00:11:10] Speaker 00:
defendant isn't getting a benefit if the government is saying we'll only not return to the grand jury if you don't file a pretrial motion.

[00:11:28] Speaker 00:
That's not what the Supreme Court and this court are talking about with the giving

[00:11:39] Speaker 02:
The government's reminding Knight's Council of motion deadlines on the 15th and wanting to check if Knight was interested in a plea.

[00:11:48] Speaker 02:
Isn't that an indication that there's ongoing discussions?

[00:11:51] Speaker 00:
That could definitely be read as an indication that the government was open to discussions on September 15th.

[00:12:01] Speaker 00:
I don't know what happened between September 15th and September 19th.

[00:12:07] Speaker 00:
in the letter, which unlike the earlier communications, was a formal letter typed out on Department of Justice letterhead.

[00:12:15] Speaker 00:
The government says, let us know if you want to plead guilty without a plea agreement.

[00:12:22] Speaker 00:
The defense counsel and Mr. Knight had to take the government at its word in that letter that there is no potential for plea negotiation, and if we file a motion to compel, it will lead to a superseding indictment.

[00:12:36] Speaker 00:
So they had to plan the defense strategy based on what the

[00:12:42] Speaker 00:
government said in its letter, they made the decision to file the motion to compel.

[00:12:47] Speaker 00:
Other defendants would have been chilled from filing that motion to compel.

[00:12:50] Speaker 00:
And this is the problem that the Supreme Court tried to avoid in the vindictiveness cases.

[00:12:58] Speaker 00:
And very briefly, for the motion to continue, the district court abused its discretion by denying the motion to continue, which came at a pivotal moment in this case.

[00:13:11] Speaker 00:
The first motion to continue after the last stipulation was rejected, the 90 days requested had been replaced by 60 days.

[00:13:23] Speaker 00:
A lot happened in those 60 days, including the government getting a superseding indictment, adding an additional five years

[00:13:32] Speaker 00:
to the mandatory minimum, and an additional element that required conversations with experts, because the additional element is receipt, which the government proved at trial through their expert to talk about BitTorrent, a complicated, sophisticated computer program.

[00:13:50] Speaker 00:
So there was a lot going on, including the motion to compel, including the draft motion to suppress, and the... But that was all based on a reasonable expectation.

[00:14:02] Speaker 02:
going to lose anyway.

[00:14:04] Speaker 00:
The motion wasn't complete.

[00:14:06] Speaker 00:
So to judge the merit of that motion like the district court did on the state that it was in when it was filed as an exhibit was not reasonable

[00:14:18] Speaker 00:
the motion to suppress, there was more in the motion to continue than just the motion to suppress, and there was more in the motion to compel than just evidence needed for the motion to suppress.

[00:14:32] Speaker 00:
So if there are no further questions, I'll reserve the remainder of the questions.

[00:15:12] Speaker 03:
this Court said, we reject Kent's argument that we should apply a more lenient rule when enhanced charges do not arise from the context of explicit lien negotiations.

[00:15:23] Speaker 03:
Later on,

[00:17:40] Speaker 03:
entered as exhibits to the motions unless the court has

[00:18:07] Speaker 03:
that the court was concerned with the progress of the case, that no motions had been filed, that all of the information necessary to file the motions at issue had been known to the defendant specifically.

[00:20:02] Speaker 03:
of other interests that would rise to rule 16 materiality.

[00:20:08] Speaker 03:
They didn't do so well.

[00:20:09] Speaker 03:
They haven't done so here.

[00:20:10] Speaker 03:
What information could possibly, it just remains a mystery.

[00:20:14] Speaker 03:
And so the district court did not abuse its discretion in refusing to have its valuable time eaten up by further motion practice and further delay.

[00:21:17] Speaker 01:
on its head snapping to have two briefs from the same office say the opposite thing.

[00:21:22] Speaker 03:
I certainly understand that, and I will say I regret and apologize for the error in this case.

[00:21:27] Speaker 03:
Obviously, it would have been my preference for it to come out the other way.

[00:21:30] Speaker 03:
And I will say that the government will not object to affirming the condition in both of these cases by any means.

[00:21:38] Speaker 01:
I'm concerned about the long run implications, because it struck me, and we'll talk about your case,

[00:21:50] Speaker 01:
on, I'd actually notice it myself first, which is Cope was talking about descriptions, and the condition here is entirely about visual depiction.

[00:22:01] Speaker 01:
That seems to be worlds apart.

[00:22:04] Speaker 01:
And the other thing that puzzles me, and this may even reach back to Cope, and I know we're bound by it, but we're talking here about

[00:22:19] Speaker 01:
He's not getting out any time soon.

[00:22:21] Speaker 01:
How, in heaven's name, is there a collateral attack we should be concerned about hypothetically after he's served time and he's then out?

[00:22:29] Speaker 01:
I mean, I just am utterly mystified that these – I understand the mechanics.

[00:22:34] Speaker 01:
You don't have to craft them case by case.

[00:22:37] Speaker 01:
But what, in heaven's name, are we talking about?

[00:23:21] Speaker 01:
use.

[00:23:50] Speaker 03:
certainly bring this message back to our office.

[00:23:54] Speaker 03:
If the Court has no further questions, I will submit.

[00:23:57] Speaker 03:
All right.

[00:23:59] Speaker 03:
Thank you, Ken.

[00:23:59] Speaker 01:
Thank you for your time.

[00:24:01] Speaker 01:
All right.

[00:24:03] Speaker 01:
We'll hear Rep.

[00:24:04] Speaker 01:
Len from Ms.

[00:24:04] Speaker 01:
Henderson.

[00:24:07] Speaker 00:
Thank you.

[00:24:08] Speaker 00:
And I'll be very brief.

[00:24:12] Speaker 00:
Kent was about the difference between explicit plea negotiations and implicit plea negotiations where maybe there isn't a lot of communication going on.

[00:24:21] Speaker 00:
This is not Kent.

[00:24:23] Speaker 00:
This case is about plea negotiations ending at some point before the September 19th letter.

[00:24:29] Speaker 00:
Your Honor's also mentioned or used the phrase inartfully drafted.

[00:24:35] Speaker 00:
This court has said that the inexperience or the mistake of a prosecutor's office is not an excuse in the vindictiveness context, because this court can only look to the objective evidence in the record.

[00:24:48] Speaker 00:
And the objective evidence in the record is that September 19th letter, along with the other communications between the parties.

[00:24:55] Speaker 00:
And then the government said that the point of that letter was getting to the negotiating table, but the government cannot get to the negotiating table by threatening to retaliate against filing a pretrial motion.

[00:25:10] Speaker 00:
government can engage in negotiations, but it cannot use that tactic because that chills defendants from filing pretrial motions, and that is vindictiveness.

[00:25:22] Speaker 00:
And then finally, there's been a lot of discussion about what the government's motives actually were here.

[00:25:31] Speaker 00:
But the district court correctly found, even setting aside the direct evidence, under the presumption test, Mr. Knight presented enough to raise a presumption of vindictiveness.

[00:25:40] Speaker 00:
shifts to the government and it's a heavy burden.

[00:25:43] Speaker 00:
This court has said that in multiple cases it's a heavy burden and the government has not met that here because there is nothing in the record, no objective evidence showing that the government filed that superseding indictment based on pretrial negotiations which had already ended as opposed to the filing of the motion today.