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United States v. Hill

United States District Court, E.D. Missouri, Eastern Division

October 28, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
SHONTELL HILL, Defendant.

          ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the pretrial motions filed by Defendant Shontell Hill. All pretrial motions were referred to United States Magistrate Judge John M. Bodenhausen under 28 U.S.C. § 636(b). Defendant Hill filed a Motion to Dismiss the Third Superseding Indictment on the Grounds of Vindictive Prosecution (Doc. No. 133), Motion to Dismiss Count One on grounds of Duplicity (Doc. No. 135) and a Motion to Dismiss Counts Six and Seven, contending that Defendant cannot be liable for identity theft because she had permission of the identity-holder (Doc. 137). Defendant also filed a Motion for Disclosure of Favorable Evidence (Doc. No. 139), and Motion for Immediate Notice of Intent to Use 404(b) Evidence (Doc. No. 141). The United States filed responses opposing all of Defendant's motions, and Defendant filed replies. The case is set for trial on November 7, 2016.

         Judge Bodenhausen held a hearing on June 27, 2016, at which the parties offered argument, but offered no evidence or testimony other than what was proffered through counsel. Judge Bodenhausen thereafter issued a Memorandum, Order, and Recommendations (“R&R”), recommending that Defendant's three motions to dismiss be denied, and that Defendant's motions for disclosure be denied without prejudice. (Doc. No. 177.) Defendant filed specific objections to the portions of the R&R denying the motions to dismiss, but acknowledged her motion for disclosure of Rule 404(b) evidence was moot, and offered no specific objection to the Order denying the Motion for Disclosure of Favorable Evidence.[1] (Doc. No. 181.) The United States filed a general response, simply stating that it relied on its previously-filed pleadings as well as the authority set forth in the R&R. (Doc. No. 187.)

         When a party objects to a Report and Recommendation in a criminal case, the court is required to “‘make a de novo review determination of those portions of the report or specified proposed findings or recommendations to which objection is made.'” United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28 U.S.C. § 636(b)(1)). The Court conducted a de novo review of the motions to dismiss, including listening to the arguments presented at the hearing. Based on that review, the undersigned concludes that the Magistrate Judge made proper findings and correctly analyzed the issues, and therefore adopts and incorporates the R&R.

         A. Motion to Dismiss Due to Vindictive Prosecution

         Defendant asserts that the indictment must be dismissed due to vindictive prosecution, alleging that the prosecutor added Defendant and her daughter to the indictment pending against Pierre Watson, and increased and amended the charges that were previously pending against Defendant, in retaliation for Defendant's refusal to plead and refusal to cooperate against Watson. Much of the somewhat complicated chronology of events is described fully in the R&Rs related to Defendant's and Watson's motions, and will not be repeated here. The Magistrate Judge correctly recited the facts and identified and analyzed the proper legal standards that govern this Court's evaluation of Defendant's assertion of vindictive prosecution. (Doc. No. 177 at 5-8.) Following a de novo review of the record, the Court agrees with the Magistrate Judge that Defendant has not met her burden to establish either objective evidence of improper motive, or that a presumption of vindictiveness should apply.

         Although it is not entirely clear, Defendant appears to assert in her objections that objective evidence of improper motive is shown from the sequence of events. Based on the timing and allegations of the second superseding indictment against Watson, in which Defendant was identified by her initials, and the fact that Defendant was indicted later, in a separate case, Defendant concludes that the prosecutor's representations regarding the development of the investigation must be untrue, and that the Magistrate Judge was misled regarding the true sequence of events. But Defendant's conclusions have no basis.

         Watson and Darisha Taylor were first indicted in September of 2015. In its responses to the motions and at the hearing, the government has summarized the following facts related to the investigation, which Defendant has not refuted. The government has represented that during the course of its investigation, it suspected Defendant had passed counterfeit checks drawn on an account similar to one used by Taylor. (Doc. No. 159.) On January 20, 2016, a superseding indictment was filed against Watson and Taylor, making certain corrections. Neither the initial nor the superseding indictment referenced Defendant Hill.

         During the course of the investigation of Watson and Taylor, the government developed information regarding Defendant's involvement in that scheme. After Taylor's arraignment in late December, the government learned Defendant had placed calls to Taylor at Watson's request. Id. In November 2015, while he was incarcerated, Watson had telephone conversations with Defendant that the government alleges included an attempt at witness tampering directed at Taylor, but the government did not review the tapes of these calls until in or around January, 2016.

         On January 26, 2016, Taylor entered a plea of guilty. The next day, the government filed a second superseding indictment against Watson only, whose case had already been set for trial. That indictment mentioned Defendant by her initials. It alleged in Count 3 that Watson induced S.H. to pass a counterfeit check on August 13, 2014, and based on the telephone calls, added a claim in Count 7, that Watson, aided and abetted by S.H., attempted to tamper with Taylor as a witness.

         On February 18, 2016, “as a result of a collateral investigation into the activities of Defendant, ” a St. Louis County detective interviewed Defendant and her daughter, Desiree Hill, regarding the passing of counterfeit checks in their accounts. At that time Defendant admitted passing counterfeit checks, and also implicated Watson in some fashion. Id. Her statements were not further detailed at the hearing.

         The following week, on February 24, 2016, Defendant was indicted in Case No. 4:16-cr-00081-JAR, involving the deposit of counterfeit checks into an account she opened in her own name in August 2014, including two counts related to the same counterfeit check referenced in Count 3 of the second superseding indictment against Watson.

         These events in no way suggest that the government's representations regarding its investigation were untrue or that the Magistrate Judge, who expressly noted the allegations regarding S.H. in the Watson indictment, was misled. To the contrary, they are consistent with the government's representations that it suspected Hill at or near the time Watson was initially indicted, and developed further information regarding Hill's involvement with Watson prior to initially indicting Hill. That the government did not charge Defendant until after she was interviewed by law enforcement officers and it obtained incriminating statements from her does not evidence vindictiveness, as Defendant contends, and is wholly consistent with responsible charging conduct.[2] Nor was the government required to include charges related to Hill's involvement with Watson at this time. Defendant has not shown that the government had completed its investigation of Hill's involvement or culpability by this date. In any event, as the R&R thoroughly discusses, the prosecutors were not required to assert all possible charges when the indictment was issued on February 24, 2016. Thus, there was nothing improper about waiting to indict or limiting the charges in Hill's initial indictment to the account Hill opened in her own name and the counterfeit checks she deposited into that account.

         Defendant was interviewed by Secret Service agents in approximately March of 2016, and made statements that supported the third superseding indictment, including an admission that she recruited her daughter in the unlawful conduct and used her daughter's identification to pass the two counterfeit checks. These statements made the prosecutor's case stronger, and the prosecutor also now had transactions to use that involved clear evidence of a real person whose identity was used in connection with the ...


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