IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

WINSTON SHROUT, 

Defendant. 

PORTLAND DIVISION 

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3: 15-cr-00438-JO 

ORDER 

This matter is before the court on defendant's Motion to Dismiss for Vindictive Prosecution 

[#73]. On December 8, 2015, the Grand Jmy returned an indictment charging defendant with six 

misdemeanor counts of willful failure to file tax returns in violation of26 U.S.C. § 7203. [#1] On 

March 15, 2016, the Grand Jury returned a superseding indictment charging him additionally with 

13 felony counts of issuing fictitious obligations in violation of 18 U.S.C. § 541. [#17] Defendant 

contends the superseding indictment appears to be a vindictive response to his decision to proceed 

without counsel and to file prose documents. The motion is DENIED. 

STANDARDS 

The Due Process Clause of the Fifth Amendment pi'ohibits a prosecutor from vindictively 

prosecuting a defendant to punish the defendant's exercise of a protected right. Blackledge v. Peny, 

417 U.S. 21, 27 (1974); United States v. Kent, 649 F.3d 906, 912 (9'h Cir. 2011). To establish a 

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prima facie case of vindictive prosecution, a defendant must show either direct evidence of the 

prosecutor's actual vindictive motive to punish him for exercising a protected right or evidence of 

circumstances that give rise to an appearance that charges were vindictively filed. United States v. 

Jenkins, 504 F.3d 694, 699 (9'h Cir. 2007); United States v. Edmonds, 103 F.3d 822, 826 (9'h Cir. 

1996). 

An appearance of vindictiveness results when there is a realistic or reasonable likelihood that 

the prosecutor pursued additional charges only because of hostility or a punitive animus toward the 

defendant because he exercised a legal right. Jenkins, 504 F.3d at 700. If the defendant establishes 

the appearance of vindictiveness, he is entitled to a presumption which the prosecution must rebut 

by showing "independent reasons or intervening circumstances dispel the appearance of 

vindictiveness and justify its decisions." United States v. Hooton, 662 F.2d 628, 634 (9'h Cir. 1981). 

DISCUSSION 

In dete1mining whether the circumstances wanant a presumption of vindictiveness, courts 

must analyze the timing of the superseding indictment and the nature of the right which the 

defendant exercised. United States v. Gallegos-Curiel, 681F.2d1164, 1168 (9'h Cir. 1982) citing 

United States v. Goodwin, 457 U.S. 368, 381-82 (1982). 

Here the initial indictment was returned while the prosecution was engaged in an ongoing 

long term investigation of defendant's activities. The superseding indictment also came during 

pretrial proceedings, while the prosecution was preparing a complex case for trial and before the 

defendant filed routine pretrial motions. The only matters before the court had been a status 

conference and Faretta hearing. At this early stage of the proceedings it is reasonably likely that, 

before seeking the superseding indictment, the prosecution had not fully discovered and assessed all 

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of the information against the defendant and made a final detennination, based on that information, 

of the extent to which he should be prosecuted. In addition, before trial defendants routinely exercise 

rights by filing motions to suppress, challenging the indictment, seeking discove1y, asking for a trial 

by jury and so fmih. It is not realistic to assume that prosecutors who routinely face these burdens 

would respond vindictively to defendant's pretrial decision to proceed prose in this case. Thus the 

timing of the superseding indictment suggests that a presumption of vindictiveness is not wananted. 

Goodwin, 457 U.S. at 381; Gallegos-Curiel, 681F.2d1168. 

The nature of the right defendant asse1ied also does not wanant a presumption of 

vindictiveness. Defendant asks the comi to conclude that the prosecution modified the charges 

against him to punish him for representing himself and filing frivolous documents. Neither his 

exercise of the right to self representation nor his filing of frivolous documents imposes additional 

burdens on the prosecution to prove its case. Under these circumstances, I find it unlikely the 

prosecutor would have a punitive animus toward defendant for exercising the rights he asserted. 

I find that the rights exercised here and the circumstances defendant identified fail to present 

a realistic likelihood of vindictiveness or raise a threshold appearance of vindictiveness sufficient 

to trigger fmiher inquiry into the prosecutor's actual motives in seeking the superseding indictment. 

Accordingly, the motion [#73] is DENIED. 

IT IS SO ORDERED. 

DATED this __21dctay of March, 2017. 

Robert E. Jones 

United S~t:VJ'strict Judge 

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