UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF 

AMERICA, 

 Plaintiff, 

 

 

v. Criminal Case No. 15-20153 

Honorable Linda V. Parker 

 

KOURTNEY BATY, 

 Defendant. 

__________________________/

 

OPINION AND ORDER DENYING DEFENDANT’S MOTION TO 

VACATE VERDICT AND DISMISS THE INDICTMENT ON GROUNDS 

OF VINDICTIVE PROSECUTION AND REQUEST FOR EVIDENTIARY 

HEARING (ECF NO. 31)

 On March 18, 2015, a federal grand jury issued an Indictment charging 

Defendant Kourtney Baty (“Defendant”) with one count of making a false 

statement to a federal officer in violation of 18 U.S.C. § 1001(a)(2). Following a 

three day trial, a jury found Defendant guilty as charged on June 11, 2015. 

Presently before the Court is Defendant’s Motion to Vacate Verdict and Dismiss 

the Indictment on Grounds of Vindictive Prosecution and Request for Evidentiary 

Hearing. (ECF No. 31.) The government filed a response to the motion on July 6, 

2015. (ECF No. 33.) For the reasons that follow, the Court finds that an 

evidentiary hearing is not warranted and denies Defendant’s motion. 

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 Defendant cites Federal Rule of Criminal Procedure 33(b)(2) in support of 

her motion. Defendant’s motion, however, is governed by Federal Rule of 

Criminal Procedure 12(b)(3). See Fed. R. Crim. P. 12(b)(3)(iv) (identifying a 

motion for selective or vindictive prosecution as a motion falling under the rule). 

Rule 12(b)(3) motions “must be raised by pretrial motion if the basis for the 

motion is then reasonably available and the motion can be determined without a 

trial on the merits[.]” Fed. R. Crim. P. 12(b)(3). While Rule 12 does grant the 

court the power to consider an untimely motion, the movant first must show “good 

cause” for not meeting the rule’s deadline. Fed. R. Crim. P. 12(c)(3). 

 Defendant does not explain why her pending motion could not have been 

raised pretrial. The factual basis for the motion was available well before trial and 

the motion could be determined without a trial on the merits. In fact, all of the 

facts relevant to the motion were known to Defendant and her counsel at least as of 

May 19, 2015, when the final pretrial conference was conducted. According to 

Defendant, it was on that date that her counsel received a copy of the September 

16, 2014 recording of the telephone conversation between Defendant and her 

brother, Brandon Baty. (See ECF No. 31 at Pg ID 155.) Because Defendant has 

not set forth any reason why her motion was not filed before trial, she has not 

shown good cause for excusing Rule 12’s deadline. The motion is untimely and 

therefore should be denied. In any event, it also fails on its merits. 

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The parties agree that in order to demonstrate a prima facie case of 

vindictive prosecution, and therefore entitlement to an evidentiary hearing, a 

defendant must show the following: “(1) exercise of a [statutorily or 

constitutionally] protected right; (2) a prosecutorial stake in the exercise of that 

right; (3) unreasonableness of the prosecutor’s conduct; (4) the intent to punish the 

defendant for exercise of the protected right.” United States v. Suarez, 263 F.3d 

468, 479 (6th Cir. 2001) (citation omitted); United States v. Moon, 513 F.3d 527, 

534 (6th Cir. 2008). With respect to the first prong, Defendant claims that the 

government is prosecuting her in retaliation for her “attempt[] to exercise her 

constitutionally protected rights under the [Fifth] Amendment of the United States 

Constitution against self-incrimination.” (ECF No. 31 at Pg ID 157.) As she 

explains further: 

The underlying vindictiveness alleged by Ms. Baty pertains to the 

personal and exclusive decision by the government attorney and case 

agent’s decision to prosecute Ms. Baty for her refusal to testify before 

a grand jury, and give testimony against her brother Brandon Baty on 

a new weapons violation. 

(Id.) Plaintiff’s refusal to testify against her brother, however, is not protected by 

the Fifth Amendment’s right against self-incrimination. See United States v. 

Paguio, 114 F.3d 928, 930 (9th Cir. 1997) (“There is no constitutional right not to 

‘snitch.’ ”); see also United States v. Goff, 400 F. App’x 1, 24 (6th Cir. 2010) 

(citing United States v. Damiano, 579 F.2d 1001, 1003 (6th Cir. 1978) (“The Fifth 

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Amendment privilege against self-incrimination ‘is grounded on a reasonable fear 

of danger of prosecution.’ ”)). 

In Goff, the Sixth Circuit rejected the defendant’s claim that he was 

subjected to vindictive prosecution because he failed to demonstrate that he 

exercised a protected right when he refused to testify before the grand jury. 

400 F. App’x at 23-24. The court of appeals had previously ruled that the 

defendant’s refusal to testify before the grand jury, after being granted 

immunity, was not protected by his Fifth Amendment right against selfincrimination as there was no danger of prosecution. Id. at 24 (citing In re 

Goff, 112 F. App’x 423, 423 n.1 (2004) (“The order compelling [the 

defendant’s] testimony and granting him immunity eviscerates any Fifth 

Amendment claim.”)). In reaching its ruling that the defendant’s refusal to 

testify was not constitutionally protected, the Sixth Circuit had rejected the 

defendant’s argument that he should be excused from testifying due to his 

fear for the safety of his family, citing In re Grand Jury Investigation, 922 

F.2d 1266 (6th Cir. 1991), “that fear is not a just cause to excuse the 

obligation to testify under [28 U.S.C.] § 1826 . . ..”1

 Id. at 1273. In both 

 

1 28 U.S.C. § 1826(a) provides: 

a) Whenever a witness in any proceeding before or ancillary to any 

court or grand jury of the United States refuses without just cause 

(Cont’d . . .) 

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Goff and In re Grand Jury Investigation, the Sixth Circuit cited to the 

Supreme Court’s decision in Piemonte v. United States, 367 U.S. 556 

(1961), where the Court stated: 

Neither before the Court of Appeals nor here was fear for himself or 

his family urged by Piemonte as a valid excuse from testifying. Nor 

would this be a legal excuse. Every citizen of course owes to his 

society the duty of giving testimony to aid in the enforcement of the 

law. See Brown v. Walker, 161 U.S. 591, 600, 16 S.Ct. 644, 40 L.Ed. 

819. Lord Chancellor Hardwicke's pithy phrase cannot be too often 

recalled: “(T)he public has a right to every man’s evidence.” 12 

Hansard's Debates 693; 8 Wigmore, Evidence (3d ed.), p. 64, § 2192. 

In re Goff, 112 F. App’x at 1 (quoting Piemonte, 367 U.S. at 559); see also 

In re Grand Jury Investigation, 922 F.2d at 1272-73. 

 In short, Defendant fails to demonstrate the first prong of a prima 

facie vindictive prosecution claim. For this reason and the reason that her 

motion is untimely, the Court is DENYING Defendant’s Motion to Vacate 

 

shown to comply with an order of the court to testify or provide other 

information, including any book, paper, document, record, recording 

or other material, the court, upon such refusal, or when such refusal is 

duly brought to its attention, may summarily order his confinement at 

a suitable place until such time as the witness is willing to give such 

testimony or provide such information. No period of such 

confinement shall exceed the life of-- 

(1) the court proceeding, or 

(2) the term of the grand jury, including extensions, 

before which such refusal to comply with the court order occurred, but 

in no event shall such confinement exceed eighteen months. 

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Verdict and Dismiss the Indictment on Grounds of Vindictive Prosecution 

and Request for Evidentiary Hearing (ECF No. 31). 

SO ORDERED. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: October 27, 2015 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, October 27, 2015, by electronic and/or 

U.S. First Class mail. 

 s/ Richard Loury 

 Case Manager 

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