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New charges for alien smuggling filed after the Defendant’s acquittal for drug trafficking were not subject to dismissal as vindictive

In Kendrick’s first trial where he faced federal charges of trafficking in marijuana and possession of a firearm he was acquitted. Shortly after his acquittal, he was indicted for the charge of smuggling an alien into the U.S. for purpose of financial gain 8 U.S.C. 1324(a)(2)(B)(ii). The Defendant claimed his prosecution for alien smuggling was based purely on prosecution vindictiveness for his beating the government at the drug and gun charges and the defendant moved to dismiss the indictment. In U.S. v. Kendrick, the 11th Circuit found no basis for prosecution vindictiveness and refused to dismiss the indictment. This is what happened.
1. The Coast Guard boarded a vessel that Kendrick was piloting off the coast of Florida and discovered 900 pounds of marijuana, a firearm and a previously deported illegal alien. Initially he was only charged with drug smuggling and firearm possession.
2. At his trial he denied knowing about the marijuana but admitted he had gone to the Bahamas to bring back illegal aliens into the U.S. for $25,000. He claims he called off the alien smuggling plan when he found they had no passports. He then backtracked from this admission and claimed he was only going there to bring back legal aliens and that was his financial motive.
3. The prosecutor said in closing that Kendrick’s claim of being paid $25,000 to bring back legal aliens was not credible and that drug trafficking must have been his business.
4. He is acquitted. Afterwards he is indicted for alien smuggling. The Defendant moves to dismiss claiming the prosecution was vindictive and brought the alien smuggling charges in retaliation. The governments response was that at the time of the original indictment, there was insufficient evidence to indict Kendrick for the alien smuggling charge but once they had his admission there was sufficient evidence to bring the charges.

The 11th Circuit found that while there may be a presumption of vindictiveness if a prosecutor seeks heightened charges after a defendant successfully appeals a conviction for the same conduct, the presumption may be rebutted if the prosecution shows reasons for adding the new charges. No presumption found here because the the alien smuggling charges were not heightened charges. The acquitted charges faced mandatory minimum sentences whereas the alien smuggling he did not. Even if there was a presumption of vindictiveness, it was rebutted by the government’s explanation that that it did not bring the charges to punish but were brought to because it did not have enough evidence the first time to charge the defendant with knowingly smuggling for profit but now it had his admission at trial that he was smuggling aliens.

Evidence was sufficient to convict.

Evidence was sufficient to allow the jury to reasonably find beyond a reasonable doubt that Kendrick knowingly smuggled an alien into the U.S. for profit based upon sufficient evidence Kendrick knew or was in reckless disregard of the fact the passenger did not have authorization to enter the U.S. Further, there was sufficient proof for the jury to conclude the defendant smuggled the passenger for profit.

Acquittal from prior trial was inadmissible.

In the prior case the prosecutor argued that the defendant was not bringing in aliens, rather he was bringing in drugs. The Defendant wanted to admit the statements of the AUSA as statements of a party opponent. The 11th Circuit concluded: 1) the statements were not exactly inconsistent, and 2) even if they arguably were, the attorney’s arguments are not evidence and are not assertions of fact. Statements made by the prosecutor in closing argument in the prior trial were inadmissible in this trial even though the statements were inconsistent with the government’s case.

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