IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : 4:CR-04-00235

:

v. : (Judge McClure)

:

JESSE BROWN, :

:

Defendant. :

O R D E R

March 27, 2006

On March 24, 2006, defendant Jesse Brown filed a Motion To Dismiss For

Vindictive Prosecution. (Rec. Doc. No. 110.) Jury selection is scheduled for April

11, 2006. Below we explain our decision to deny the motion as untimely.

Brown was initially indicted by a Grand Jury sitting in the Middle District of

Pennsylvania on July 22, 2004, for five counts of possession with intent to

distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). (Rec. Doc. No. 1.) 

On September 22, 2004, Brown pled not guilty. A first superseding indictment was

thereafter returned on February 24, 2005. (Rec. Doc. No. 44.) Brown pled not

guilty on March 2, 2005. A second superseding indictment was filed on March 10,

2005. (Rec. Doc. No. 54.) Brown pled not guilty to the second superseding

indictment on March 28, 2005.

On September 22, 2005, yet a third superseding indictment was returned

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against Jesse Brown. (Rec. Doc. No. 80.) Again, Brown pled not guilty on

October 11, 2005. Also on October 11, 2005, the court issued a pretrial order

scheduling jury selection for December 6, 2005. In paragraph ten of the order, we

stated: “Except as otherwise provided in this order, all pretrial motions enumerated

in Fed. R. Crim. P. 12 shall be made within fifteen (15) days after the date of this

order. All such motions must be in writing and accompanied by a legal brief in

support of the motion.” (Order, Rec. Doc. No. 87, at ¶ 10.)

The trial of Jesse Brown has since been continued three times. In the various

requests for continuance, neither party has requested, nor has the court granted, an

extension to file pretrial motions. As per the order of this court dated October 11,

2005, all pretrial motions under Federal Rule of Criminal Procedure 12 must have

been filed by October 26, 2005. The instant motion, purportedly filed pursuant to

Federal Rule of Criminal Procedure 12(b)(3)(B), was submitted on March 24, 2006. 

We will therefore deny the motion as untimely. 

A number of other reasons militate in favor of this dismissal. Firstly, we

perceive no justification for the tardiness of the motion. The third superseding

indictment was filed on September 22, 2005. That gave Brown over one month to

file this motion. Secondly, allowing full briefing on the motion would jeopardize the

date set aside for jury selection for a criminal trial that has already been continued

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1The thrust of Brown’s motion is that during the plea bargaining process, the

government used as leverage threats to file superseding indictments increasing the

number and severity of the charges against Brown. Brown appears to argue that

such a practice punishes Brown for exercising his right to plead “not guilty.” 

However, the Supreme Court of the United States has ruled that “While confronting

a defendant with the risk of more severe punishment clearly may have a

discouraging effect on the defendant’s assertion of his trial rights, the imposition of

these difficult choices is an inevitable–and permissible–attribute of any legitimate

system which tolerates and encourages the negotiation of pleas.” Bordenkircher v.

Hayes, 43 U.S. 357, 364 (1978) (Stewart, J.). 

Thus, “no prosecutorial vindictiveness existed and no due process violation

occurred in the context of a plea bargain where the defendant is informed of the

terms of the deal and is free to accept or reject the offer.” United States v. Oliver,

787 F.2d 124, 125-26 (3d Cir. 1986) (citing Bordenkircher, 43 U.S. at 363). 

“In our system, so long as the 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 or bring before a grand jury, generally rests

entirely in [the prosecutor’s] discretion.” Bordenkircher, 434 U.S. at 364. 

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three times. Finally, even were the parties to submit briefs in support and

opposition, we would most likely deny the motion.1

NOW, THEREFORE, IT IS ORDERED THAT:

Defendant Jesse Brown’s Motion To Dismiss For Vindictive Prosecution

(Rec. Doc. No. 110) is denied. 

 s/ James F. McClure, Jr. 

 James F. McClure, Jr.

United States District Judge

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