United States v. Young, CRIMINAL ACTION NO. 16–45–JWD–RLB

• Decision Date: 06 February 2017
• Docket Number: CRIMINAL ACTION NO. 16–45–JWD–RLB
• Citation: 231 F.Supp.3d 33
• Parties: UNITED STATES of America v. Christopher G. YOUNG
• Court: U.S. District Court — Middle District of Louisiana

231 F.Supp.3d 33

UNITED STATES of America

v.Christopher G. YOUNG

CRIMINAL ACTION NO. 16–45–JWD–RLB

United States District Court, M.D. Louisiana.

Signed February 6, 2017

Cam T. Le, Rene Irvin Salomon, United States Attorney's Office, Baton Rouge, LA, for Plaintiff.

RULING AND ORDER

JUDGE JOHN W. deGRAVELLES, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on the Motion to Dismiss for Selective and Vindictive Prosecution (Doc. 11) by Defendant Christopher G. Young. The motion is opposed. (Doc. 12.) Evidentiary hearings were held on September 15, 2016, and October 5, 2016. (Docs. 24 & 37.) Both parties have provided extensive post-hearing briefing. (Docs. 39, 40, 45 & 47.) Oral argument was also heard on January 6, 2017. (Doc. 48.) The Court has carefully considered the law, evidence in the record, and the arguments of the parties. For the following reasons, the Defendant's motion is denied.

TABLE OF CONTENTS

I. Introduction and Summary of Ruling...38

II. Procedural History...42

III. Evidence in the Record...44

A. Individuals Relevant to this Motion...44

B. July 31, 2015—Initial Complaint...46

C. August 3, 2015—Arranging the Meeting with Ms. Wempren...46

D. August 4, 2015—The Government Meets With Ms. Wempren for the First Time... 47

E. August 5, 2015—Galatoire's and the FBI Office...48

1. Defendant's Lunch with Wempren...48

2. Defendant's Initial Encounter and Interview with the FBI Agents...49

3. Defendant's Trip to the FBI Office and Agent Hattier's Alleged Inappropriate Comments...51

4. Defendant's Trip Back to Galatoire's...55

F. August 6, 2015...55

1. Downie's Work on Defendant's iPhone—Extracting the Files and Removing the Videos...55

2. Defendant Gets His Phone Back, and Agent Soli Tells the Defendant That Defendant Is Not a Child Pornographer...60

G. August 7, 2015—Limited Extraction of Shantel Wempren's Phone...62

H. Between August 7, 2015 and October 28, 2015...63

1. Videos Still on the Phone...63

2. The Case Agent in this Investigation...65

I. October 7, 2015—Agent Hattier's Review of the Cell Phone...65

J. October 28, 2015—The Target Letter and Hattier's Second Alleged Set of Inappropriate Comments to the Defendant...67

K. Beyond October 28, 2015...71

1. Defendant's Interaction with the FBI since the Target Letter...71

2. November 5, 2015—The Meeting Between the Government and the Defendant's Attorneys...72

3. January 5, 2016—Plea Negotiations...75

4. January 26, 2016—Plea Negotiations...75

5. February 3, 2016—The Government's Interview with Jessica Starns...75

6. February 4–12, 2016—Plea Negotiations...75

7. Meeting Between Defense Counsel, the U.S. Attorney, the First Assistant U.S. Attorney, and the Prosecutor...76

8. May 12, 2016—Indictment...76

L. Other Aspects of the Investigation...76

1. Why Not Search Other Devices?...76

2. Why Not Follow Up with Other Recipients? (And Other Inaction)...78

3. The National Center for Missing and Exploited Children Request...81

4. The Young Girl in Costa Rica and the Legat Request...81

5. Did the FBI Know That Zeid Ammari Sent One of the Videos? And More on Why the Videos Were Not Removed...83

6. DOJ Guidelines and the Policy of the U.S. Attorney's Office for the Middle District of Louisiana...85

7. The Agent's Role...88

8. Similarities (or Dissimilarities) To Other Cases...88

9. Location of the Copy of the Phone...89

IV. Discussion...89

A. Selective Prosecution...89

1. Parties' Arguments...89

a. Defendant's Original Memorandum in Support (Doc. 11–1)...89

b. Government's Original Opposition (Doc. 12)...90

c. Defendant's Post–Hearing Memorandum (Doc. 40)...92

d. Government's Post–Hearing Brief (Doc. 39)...93

e. Defendant's Response to the Government's Post–Hearing Memorandum (Doc. 45)...94

f. Government's Reply to the Defendant's Post–Hearing Memorandum (Doc. 47)... 95

2. Analysis...97

a. Discriminatory Effect...99

b. Discriminatory Purpose...104

i. Guidelines for the DOJ And This U.S. Attorney Office...105

ii. The Government's Initial Investigation Into the Defendant...106

iii. Explanations for the Irregularities in the Investigation...107

iv. Imputing Hattier's Statements to the U.S. Attorneys...109

v. AUSA Cam Le's Meeting with Defense Counsel...110

vi. Evidence of Plea Negotiations...110

vii. Plain Language of the Statute...111viii. Failure to Cooperate Is Not a Protected Right...112

ix. Summary...113

3. Legitimate Basis for Prosecuting...113

B. Vindictive Prosecution...113

1. Parties' Arguments...113

a. Defendant's Original Memorandum in Support (Doc. 11–1)...113

b. Government's Original Opposition (Doc. 12)...113

c. Defendant's Post–Hearing Memorandum (Doc. 40)...114

d. Government's Post–Hearing Brief (Doc. 39)...115

e. Defendant's Response to the Government's Post–Hearing Memorandum (Doc. 45)...115

f. Government's Reply to the Defendant's Post–Hearing Memorandum (Doc. 47)... 116

2. Analysis...117

a. Standard and Summary of Ruling on This Issue...117

b. Presumption of Vindictiveness...118

c. Actual Vindictiveness...119

i. Agent Hattier's Statements Do Not Prove Vindictiveness...119

ii. Insufficient Evidence of Misconduct by the United States Attorney's Office...120

iii. Overwhelming Case Law Demonstrates that the Defendant's Motion Should Be Denied...121

V. Conclusion...128

RULING

I. Introduction and Summary of Ruling

Defendant Christopher G. Young is a local attorney and former lobbyist. Once in 2013 and again in 2015, he received two separate videos, each showing a prepubescent male engaged in a sexual act with a donkey. He forwarded these videos in text messages to about thirty-eight people on thirty-three separate occasions over a two-year period. Now, Young is charged with one count of distributing child pornography and one count of possessing child pornography.

In the instant motion, Defendant argues that he was unlawfully targeted for prosecution because he refused to cooperate in a public corruption investigation and because he is a lobbyist. The Defendant claims selective and vindictive prosecution.

Preliminarily, the Court is very sympathetic to the "common sense" argument made by defense counsel at oral argument. Agent Stephen Soli, who was the lead child pornography investigator for the FBI in this district for several years and the agent who first investigated this case, candidly testified that he told the Defendant that Defendant was not a child pornographer. This statement is entirely understandable considering the sense in which the Court believes Soli intended it and the sense in which most lay persons understand the term. Defendant received and passed on to friends a video of a minor male child having sex with a donkey, a video he did not create, search for, solicit, pay for, or share with others for purposes of his or anyone else's sexual gratification. The Government does not argue otherwise. Rather he sent the video to friends, family, and clients as a crude joke.

The Defendant testified he never thought he was distributing child pornography, and this contention seems supported by the fact that he sent the videos openly to family, friends and clients. This conduct doesn't square with the conduct of others before me charged with the same offenses, defendants allegedly surreptitiously prowling the internet and receiving hundreds or thousands of child pornographic images which are viewed and shared with other child pornographers for sexual gratification.

Defendant admits sending these two videos was a mistake. It certainly was. What he did was, by his own account, the kind of gross, juvenile, and unthinking act the Court suspects has probably been engaged in by millions (if not more) high schoolers and college fraternity boys. But the language of the criminal statutes under which he is charged contains no exemptions from criminal culpability because his purpose was not sexual gratification but, rather, to engage in locker room humor. One of these statutes carries with it a mandatory minimum of five years imprisonment if convicted. Given the seriousness of these charges and the social stigma associated with them, merely being charged can carry a heavy burden. Indeed, in this case, the Defendant testified he terminated his lobbying business and registration because he was "concerned about [his] clients" and because he didn't want to put them in an "uncomfortable situation." If he pleads or is found guilty, he may well lose his license to practice law in addition to any prison sentence he is given.

Whether to charge one with a crime and choosing the specific crime with which to charge a given defendant are decisions belonging to the prosecutor. It is an awesome power and grave responsibility, but it is one in which the Government is given very broad discretion. No matter how emphatically this Court may disagree with how the Government exercised its discretion in this case, it is powerless to affect that decision unless the Defendant is able to prove that the Government's decision was unlawful. He has not.

Critically, in United States v. Armstrong , 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), the Supreme Court identified the core principles relevant to this issue and resolving this motion:

The Attorney General and United States Attorneys retain " ‘broad discretion’ " to enforce the Nation's criminal laws. Wayte v. United States , 470 U.S. 598, 607, 105 S.Ct. 1524, 1530–1531, 84 L.Ed.2d 547 (1985) (quoting United States v. Goodwin , 457 U.S. 368, 380, n. 11, 102 S.Ct. 2485, 2492, n. 11, 73 L.Ed.2d 74 (1982) ). They have this latitude because they are designated by statute as the President's delegates to help him discharge his constitutional responsibility to "take Care that the Laws be faithfully executed." U.S. Const., Art. II, § 3 ; see 28 U.S.C. §§ 516, 547. As a result, "[t]he presumption of regularity supports" their prosecutorial decisions and, "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." United States v. Chemical Foundation, Inc. , 272 U.S. 1, 14–15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926). In the ordinary case, "so long as

...