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Appeals Court Upholds Dismissal of New Indictment as Retaliation by Prosecutors - U.S. v. LaDeau

Although many try, it’s not often that defendants in child pornography crimes are able to suppress the evidence against them. But in United States v. LaDeau, defendant Daniel Bruce LaDeau was able to suppress the evidence against him, saying his responses were improperly coerced by a police officer who threatened to tell his wife about the charges just moments before she went into surgery. This removed all admissible evidence that LaDeau had child pornography in his possession. Prosecutors responded by bringing a superseding indictment just five days before trial, adding that LaDeau conspired with his brother to receive child pornography—based on information the prosecution had had since the beginning. LaDeau pointed that out in his motion to suppress the superseding indictment, and the district court agreed. The Sixth U.S. Circuit Court of Appeals upheld that ruling.

Daniel LaDeau came to the attention of authorities because of letters between him and his jailed brother, David LeDeau. The letters, written in code, discussed ways to get child pornography and conceal it. Officials got a search warrant for Daniel LaDeau’s home and executed it in August of 2010, finding several flash drives full of child pornography. LaDeau was indicted on one charge of child pornography possession as a result. His first motion to suppress this evidence was not successful, but in his second, he pointed out that officers had conducted their interview with him in the hospital, where his wife was about to undergo life-threatening surgery, and improperly threatened to tell her about the investigation directly before that surgery. The court agreed to suppress both his statements and the thumb drives, leaving no evidence supporting possession charges.

Five days before trial, prosecutors brought a superseding indictment against both Daniel and David LaDeau, saying they conspired to receive child pornography—a more serious crime than possession. Daniel LaDeau’s motion to suppress for prosecutorial vindictiveness pointed out that the new indictment was not based on new evidence and could have been brought a year earlier. After a hearing, the district court agreed and found that the government’s arguments did not rebut the presumption of vindictiveness. After denial of a motion to reconsider, the government appealed.

Courts may presume prosecutorial vindictiveness if the prosecutor’s conduct was somehow unreasonable and the prosecutor has a stake in deterring defendants’ exercise of their rights. Under this standard, the Sixth Circuit found that the government didn’t adequately rebut the presumption. Because the prosecution had all the information supporting the second indictment from the beginning, the court said, there’s no reason to think its view of the case changed significantly. And the only substantial event in the case during its pendency was the suppression motion, the court said, which “eviscerated the government’s possession case.” And the receipt charge carried a harsher sentence, the Sixth noted, which was unnecessary because the prosecution could have charged him with conspiracy to possess. Finding no proffered explanation sufficient to rebut this, the Sixth upheld the district court.

It’s pleasing to see this kind of victory for a child pornography possession defendant, because these defendants are often not given much deference in appeals courts. As this case shows, excluding the evidence of possession is a very powerful tool for cyber crime defense lawyers—it can destroy the prosecution’s entire case. And evidence must be excluded when it’s obtained illegally, which can be done with any type of search that violates the defendant’s Fourth Amendment rights, including a warrantless search or one that was consented to under duress. The goal of excluding evidence obtained in these ways is to prevent police officers and prosecutors from using illegal tactics in the first place. In the same way, forbidding new charges based on retaliation by prosecutors, like in this case, is an important deterrent against abuses.

Seltzer Mayberg, LLC, represents clients across the United States who have been charged with serious cyber crimes. If you’re facing charges of child pornography, solicitation of a minor, hacking, identity theft or others related to computers and technology, don’t hesitate to call us to discuss your legal options. For a free consultation, call us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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