UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

United States of America,

Plaintiff, Case No. 1:17cr145

v. Judge Michael R. Barrett

Curtis Joash,

Defendant.

ORDER

This matter is before the Court pursuant to a hearing conducted on August 7, 

2018 before the undersigned on Defendant’s Motion to Dismiss the Indictment Based 

Upon Prosecutorial Vindictiveness (Doc. 39) and the Government’s Response in 

Opposition (Doc. 41). 

On January 17, 2018, the Indictment in this matter was filed. (Doc. 15). The 

Indictment charged Defendant with one count of theft of public money in violation of 18 

U.S.C. § 641. The charge is based on the payment of benefits by the Social Security 

Administration to Defendant’s mother for approximately 27 years after her death. The 

payments were made into a joint bank account belonging to Defendant and his mother. 

On February 16, 2018, Defendant filed his first Motion to Dismiss. (Doc. 22). In 

the Motion, Defendant argued that after the money was deposited by the Social Security 

Administration into a private bank account, it was no longer government property at the 

time it was taken.

On April 17, 2018, this Court denied Defendant’s Motion to Dismiss. (Doc. 29).

After the Court’s ruling, Defendant offered to enter into a conditional plea pursuant to 
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Federal Rule of Criminal Procedure 11(a)(2) to preserve his appellate rights on the 

Motion to Dismiss. (Doc. 22). This offer was rejected by the Government.

On July 25 2018, the Superseding Indictment was filed. (Doc. 36). The 

Superseding Indictment included the original charge of theft of public money but also 

included a new charge of wire fraud under 18 U.S.C. § 1343.

Defendant asserts that the filing of the additional charge of wire fraud was to 

punish Defendant for his desire to pursue his legal issue for appeal. Defendant explains 

that the maximum sentence in the original indictment was 10 years, but the new charge 

carries a maximum sentence of 30 years. 

The Government counters that Defendant was put on notice and warned that 

additional information may come to light. The Government contends that as a result of 

the investigation and trial preparation, it obtained additional information. Further, the 

Government contends that the difference in the sentences between the theft of public 

money count and wire fraud count is one offense level, and the sentencing guidelines 

are otherwise the same under both statutes.

A prosecutor enjoys broad discretion in determining whom to prosecute for what 

crime, and such pretrial charging decisions are presumed to be legitimate. 

Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Even 

though prosecutors have broad discretion, the Due Process Clause “prohibits the 

prosecution from punishing a defendant for exercising a protected statutory or 

constitutional right.” United States v. LaDeau, 734 F.3d 561, 566 (6th Cir. 2013).

In order to establish a claim of prosecutorial vindictiveness, the defendant must 

show: “(1) exercise of a protected right; (2) the prosecutor's “stake” in the exercise of 
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that right; (3) the unreasonableness of the prosecutor's conduct; and, presumably, (4) 

that the prosecution was initiated with the intent to punish the plaintiff for the exercise of 

the protected right.” United States v. Dupree, 323 F.3d 480, 489 (6th Cir. 2003)

(quoting Nat'l Eng'g & Contracting Co. v. Herman, 181 F.3d 715, 723 (6th Cir. 1999)). 

“Thus, a person claiming to be vindictively prosecuted, must show that the prosecutor 

had some ‘stake’ in deterring the petitioner's exercise of his rights, and that the 

prosecutor's conduct was somehow unreasonable.” Id.

The Sixth Circuit has explained that there are two approaches to showing 

prosecutorial vindictiveness:

A defendant can show “actual vindictiveness,” by producing “objective 

evidence that a prosecutor acted in order to punish the defendant for 

standing on his legal rights,” or the Court can find a presumption of 

vindictiveness by applying the “realistic likelihood of vindictiveness,” 

standard which focuses on the prosecutor's “stake” in deterring the 

exercise of a protected right and the unreasonableness of his actions. 

United States v. Poole, 407 F.3d 767, 774 (6th Cir. 2005) (citing United States v. 

Dupree, 323 F.3d 480, 489 (6th Cir. 2003). If the defendant makes a showing to

support a presumption of vindictiveness, the government bears the burden of rebutting 

the presumption with “objective, on-the-record explanations” such as “governmental 

discovery of previously unknown evidence” or “previous legal impossibility.” United 

States v. LaDeau, 734 F.3d 561, 566–67 (6th Cir. 2013) (quoting Bragan v. Poindexter, 

249 F.3d 476, 482 (6th Cir. 2001)).

Here, Defendant argues that the Superseding Indictment is an attempt to cut off 

the defendant’s appellate rights as they relate to the issues raised in the Motion to 

Dismiss or, in the alternative, penalizes the defendant for his request to enter a 

conditional plea. 
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The Sixth Circuit has explained that if pre-trial addition of charges are brought 

“simply as the result of failure of the plea bargaining process, they are not vindictive.” 

United States v. Suarez, 263 F.3d 468, 479 (6th Cir. 2001). The Government explains 

the additional charges were brought based on information that was not in hand at the 

time of the filing of the Information and initial Indictment. The Government explains that 

it obtained the following additional evidence on or about the dates indicated:

• paperwork from the funeral home that handled Defendant’s mother’s 

services in 1990, which included Defendant’s signature and an incorrect 

version of his late mother’s Social Security number (received by the 

government on June 11, 2018);

• tax documents reflecting that Defendant did not disclose thousands of 

dollars in income per year from his late mother’s Social Security benefits 

(June 22, 2018);

• un-redacted bank signature cards, which revealed that Defendant’s 

signature appeared on a signature card together with his mother’s correct 

Social Security number, in contrast to the funeral home paperwork in 

which his signature appeared together with an incorrect recitation of his 

mother’s Social Security number (July 11, 2018);

• historical copies of the standard consumer account agreement governing 

the bank account that Defendant used, which reflected that the bank 

required a joint account holder like Defendant to notify the bank when the 

other account holder died (July 19, 2018); and

• a chart from the U.S. Treasury Department, which indicated that 

Defendant’s late mother’s Social Security benefits were wired across state 

lines (July 23, 2018).

(Doc. 41, PAGEID #123-124).

The Court does note that these facts do not alter the basis of the theft of public 

money charge in the original Indictment. Thus, Defendant’s theory regarding money 

deposited in a private bank account contained in the previously overruled Motion to 

Dismiss still applies to Count 1 of paragraphs 1 through 12 and Count 2 of the 
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Superseding Indictment. Defendant’s right to appellate review is not prevented, and 

Defendant cannot show the Government had any particular “stake” in preventing the 

assertion of these rights.

In addition, Defendant has not shown that the Government’s actions are 

unreasonable. As the Sixth Circuit has explained, “the mere presence of a superseding 

indictment bringing additional charges is not sufficient to be presumptively 

unreasonable.” United States v. Suarez, 263 F.3d 468, 480 (6th Cir. 2001) (citation 

omitted). “Generally, a potentially vindictive superseding indictment must add additional 

charges or substitute more severe charges based on the same conduct charged less 

heavily in the first indictment.” Id. According to the Government, the additional count 

will have no practical effect on the outcome of the sentencing guidelines calculation. In 

addition, the Government has shown that the additional charges were not brought 

earlier because they were based on new evidence. As such, the Government has 

rebutted any showing of vindictiveness. Therefore, the Court finds neither objective nor 

subjective vindictiveness on the part of the Government.

Based upon the foregoing, Motion to Dismiss the Indictment Based Upon 

Prosecutorial Vindictiveness (Doc. 39) is DENIED.

IT IS SO ORDERED.

 /s/ Michael R. Barrett _

Michael R. Barrett, Judge

United States District Court