                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                File Name: 13a0320p.06

              UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                               X
                         Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                -
                                                -
                                                -
                                                    No. 12-6611
          v.
                                                ,
                                                 >
                                                -
                        Defendant-Appellee. -
 DANIEL BRUCE LADEAU,
                                               N
                  Appeal from the United States District Court
               for the Middle District of Tennessee at Nashville.
             No. 3:10-cr-00242-1—John T. Nixon, District Judge.
                              Argued: October 3, 2013
                      Decided and Filed: November 4, 2013
           Before: ROGERS, GRIFFIN, and DONALD, Circuit Judges.

                                _________________

                                    COUNSEL
ARGUED: Cecil Woods VanDevender, UNITED STATES ATTORNEY’S OFFICE,
Nashville, Tennessee, for Appellant. Michael C. Holley, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellee. ON BRIEF: J. Alex
Little, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellant.
Michael C. Holley, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee,
for Appellee.
                                _________________

                                     OPINION
                                _________________

       GRIFFIN, Circuit Judge. Defendant Daniel Bruce LaDeau was indicted on a
single count of possessing child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(A). This charge prescribed a sentencing range of zero to ten years’
imprisonment. Subsequently, LaDeau moved to suppress the evidence that he had any
such materials in his possession. After the district court granted LaDeau’s motion to


                                          1
No. 12-6611        United States v. LaDeau                                       Page 2


suppress, the government sought and obtained a superseding one-count indictment
charging LaDeau with a conspiracy offense based on evidence that had been in the
government’s possession since before the initial indictment. But rather than charging
LaDeau in the superseding indictment with conspiring to possess child pornography, the
government chose to charge him with conspiring to receive child pornography—a
charging decision that subjected LaDeau to a five-to-twenty-year prison term instead of
the previously applicable statutory range of zero to ten years. Defendant LaDeau then
moved to dismiss the superseding indictment. The district court agreed with LaDeau
that the government’s decision to change to a receipt theory warranted a presumption of
prosecutorial vindictiveness, inasmuch as there was a realistic likelihood that LaDeau
was being charged with a more serious offense in retaliation for his successful
suppression motion. Concluding that the government had not rebutted the presumption
of vindictiveness, the district court dismissed the superseding indictment. The
government filed this appeal. Because the district court did not abuse its discretion in
dismissing the superseding indictment, we affirm.

                                             I.

       In April 2010, letters sent between LaDeau and his then-jailed brother, David
LaDeau, came to the attention of authorities. The letters, written in code, allegedly
contained communications between the brothers about ways to obtain and conceal child
pornography.

       Law enforcement officials executed a search warrant at defendant Daniel
LaDeau’s residence in August 2010. There, investigators discovered several USB flash
drives (or “thumb drives”) containing what appeared to be child pornography. After the
search, LaDeau was indicted on one charge of possessing child pornography, in violation
of 18 U.S.C. § 2252A(a)(5)(A). This charge carried a statutory sentencing range of zero
to ten years’ imprisonment. See 18 U.S.C. § 2252A(b)(2).

       LaDeau’s initial motion to suppress the evidence recovered from his residence
was denied by the district court. In March 2011, LaDeau filed a supplemental motion
to suppress several inculpatory statements, as well as the thumb drives and other
No. 12-6611           United States v. LaDeau                                                    Page 3


physical evidence seized from his residence. In relevant part, LaDeau asserted that
officers executing the search warrant, who had interviewed LaDeau in a hospital while
he was attending to his ailing wife, improperly coerced his responses by threatening to
inform his wife about their investigation moments before she underwent life-threatening
surgery. In September 2011, the district court granted LaDeau’s motion to suppress and
excluded his inculpatory statements and the thumb drives in question. After this
evidence was suppressed, there was no longer any admissible evidence that LaDeau had
possessed any child pornography.

         Trial was scheduled to begin on November 15, 2011, but on November 10, the
government obtained a superseding indictment. The superseding indictment added
LaDeau’s brother, David, as a codefendant and charged both brothers with conspiracy
to receive child pornography, in violation of 18 U.S.C. § 2252A(a)(2)—a charge that
carries a five-year mandatory minimum sentence and a statutory sentencing range of five
to twenty years in prison. See 18 U.S.C. § 2252A(b)(1).1

         Defendant Daniel LaDeau moved to suppress the superseding indictment for
prosecutorial vindictiveness, pointing out that the new charge was not based on any new
evidence that the government obtained after the initial indictment. According to
LaDeau, the government could have charged him with the harsher receipt offense at any
point during the thirteen months in which his prosecution had been pending, but had
chosen to do so only after LaDeau won his suppression motion. In LaDeau’s view, the
government had no good reason to change its theory of the case at that point, meaning
that the government’s conduct was a presumptively retaliatory response to his successful
motion to suppress.

         After a hearing on the matter, the district court agreed with LaDeau and entered
an order in which it found both (1) that the presumption of vindictiveness was triggered
on the facts of the case and (2) that the government had failed to rebut the presumption.
Specifically, the district court found that the government had a significant stake in the

         1
          Prior to prevailing on the motion to suppress, LaDeau’s counsel had estimated that LaDeau could
have faced a Guidelines range of approximately thirty-seven to forty-six months on the possession charge.
No. 12-6611           United States v. LaDeau                                           Page 4


outcome of LaDeau’s suppression motion, that it was unreasonable for the government
to indict LaDeau for a receipt conspiracy when a possession conspiracy charge was
available and would have subjected him to an identical statutory sentencing range as that
carried by the charge in the initial indictment, and that the government’s “conclusory”
arguments did not serve to rebut the presumption of vindictiveness.

          The government moved the district court to reconsider its ruling, proffering an
affidavit in which the government asserted that the Assistant United States Attorney who
had been prosecuting LaDeau’s case had intended all along to supersede with a
conspiracy-to-receive charge but had simply not done so until after the successful motion
to suppress, some thirteen months after the original indictment had been returned. The
affidavit gave no explanation for the thirteen-month delay; it simply indicated that the
initial indictment had been hastily procured “due to time considerations” and asserted
that no member of the United States Attorney’s office “would seek to retaliate against
a defendant because he or she has filed a motion to suppress.” The district court denied
the government’s motion to reconsider, and the government filed this appeal.

                                               II.

          The first disagreement between the parties concerns the proper standard of
review. Although the government requests that we review de novo, we have previously
concluded that the ultimate decision whether to dismiss an indictment for prosecutorial
vindictiveness is reversible only if the district court abused its discretion. See United
States v. Moon, 513 F.3d 527, 534 (6th Cir. 2008). See also United States v. Dupree,
323 F.3d 480, 484 (6th Cir. 2003) (rejecting the defendant’s argument that his
prosecutorial vindictiveness claim be reviewed de novo).

          A district court abuses its discretion “when it relies on erroneous findings of fact,
applies the wrong legal standard, misapplies the correct legal standard when reaching
a conclusion, or makes a clear error of judgment.” Schlaud v. Snyder, 717 F.3d 451, 457
(6th Cir. 2013) (quotation marks omitted). Because a district court has no discretion not
to abide by governing law, an erroneous legal conclusion deserves no deference on
appeal.     See Koon v. United States, 518 U.S. 81, 100 (1996); United States v.
No. 12-6611         United States v. LaDeau                                           Page 5


Titterington, 374 F.3d 453, 456 (6th Cir. 2004). As a result, even under abuse-of-
discretion review, a district court commits error requiring reversal if its determination
whether to dismiss an indictment for prosecutorial vindictiveness depends upon a
misapplication of pertinent law. See United States v. Grenier, 513 F.3d 632, 636 (6th
Cir. 2008). By contrast, where the district court’s dismissal determination hinges upon
factual findings, we defer to the district court’s decision unless the findings upon which
it was predicated are clearly erroneous. See id. at 635–36.

                                            III.

        As the parties recognize, a prosecutor’s “broad discretion” in deciding whom to
prosecute and which charges to bring “is not unfettered.” Bragan v. Poindexter,
249 F.3d 476, 481 (6th Cir. 2001) (internal quotation marks omitted). At a minimum,
prosecutorial discretion is restrained by the Due Process Clause, which prohibits the
prosecution from punishing a defendant for exercising a protected statutory or
constitutional right. United States v. Poole, 407 F.3d 767, 774 (6th Cir. 2005) (citing
United States v. Goodwin, 457 U.S. 368, 372 (1982)). Although a defendant may obtain
a dismissal of an indictment on grounds of prosecutorial vindictiveness by showing
“actual vindictiveness”—that is, “objective evidence that a prosecutor acted in order to
punish the defendant for standing on his legal rights,” Dupree, 323 F.3d at 489—an
indictment may also be dismissed as vindictive upon a showing that “in the particular
factual situation presented, there existed a ‘realistic likelihood of vindictiveness’ for the
prosecutor’s action.” Bragan, 249 F.3d at 481 (quoting United States v. Andrews, 633
F.2d 449, 455 (6th Cir. 1980) (en banc)). In Blackledge v. Perry, 417 U.S. 21 (1974),
for example, the Supreme Court held that, where a defendant who had been convicted
of a misdemeanor exercised his right to a de novo trial, it was presumptively vindictive
for the prosecution to subsequently file a felony charge against him based on the same
underlying conduct. Id. at 27. By allowing for a presumption of vindictiveness to be
drawn under narrow circumstances, the Blackledge rule is a prophylactic one; it
safeguards a defendant’s due process rights by eliminating apprehension of prosecutorial
retaliation where circumstances reasonably indicate retaliation, even if there is no direct
No. 12-6611         United States v. LaDeau                                           Page 6


evidence that the prosecutor was in fact improperly motivated. See Goodwin, 457 U.S.
at 373–76, 383; United States v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008); Andrews,
633 F.2d at 455.

        If a defendant establishes that “(1) the prosecutor has some stake in deterring the
[defendant’s] exercise of his rights and (2) the prosecutor’s conduct was somehow
unreasonable,” then the district court may find that there is a “reasonable likelihood of
vindictiveness” and may presume an improper vindictive motive. Bragan, 249 F.3d at
482 (internal quotation marks omitted); see United States v. Suarez, 263 F.3d 468, 479
(6th Cir. 2001). 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.” Bragan, 249 F.3d at 482 (internal
quotation marks omitted); Andrews, 633 F.2d at 456.

        We have previously explained that “a court faced with vindictiveness allegations
must assess the fact situation before it to see if the [vindictiveness] standard is met. . . .
Each situation will necessarily turn on its own facts.” Andrews, 633 F.2d at 453–54. On
the circumstances of this case, we hold that the district court’s decision to dismiss the
superseding indictment for vindictiveness was not an abuse of its discretion.

                                             A.

        The government first claims that the district court erred in ruling under
Blackledge that there was a significant prosecutorial stake in deterring LaDeau’s
exercise of his suppression rights. In this respect, the government relies heavily on
United States v. Goodwin, 457 U.S. 368 (1982), for the proposition that “[t]here is good
reason to be cautious before adopting an inflexible presumption of prosecutorial
vindictiveness in a pretrial setting.” Id. at 381. Relevant to this case, Goodwin gave two
reasons for its hesitation: (1) that, pretrial, “the prosecutor’s assessment of the proper
extent of prosecution may not have crystallized,” meaning that a decision to add or
increase charges as the scope of the case became more clear should not excite suspicion;
and (2) that it is “unrealistic to assume that a prosecutor’s probable response” to
“routine[ ]” pretrial motions—including “motions to suppress”—would be punitive,
No. 12-6611          United States v. LaDeau                                             Page 7


given that defendants are “expected to invoke procedural rights that inevitably impose
some ‘burden’ on the prosecutor.” Id.

        But the government is incorrect to suggest that Goodwin categorically bars a
district court from finding that the requisite “stake” could arise in the pretrial setting.
In fact, Goodwin “declined to adopt a per se rule that in the pretrial context no
presumption of vindictiveness will ever lie.” United States v. Meyer, 810 F.2d 1242,
1246 (D.C. Cir. 1987); see Goodwin, 457 U.S. at 381, 384. As a result, our pre-Goodwin
decision in Andrews “remains good law,” such that “prosecutorial vindictiveness can
potentially be found in the pre-trial addition of charges following pre-trial assertions of
protected rights.” Suarez, 263 F.3d at 479; see Andrews, 633 F.2d at 454. See also
United States v. Barner, 441 F.3d 1310, 1317–18 (11th Cir. 2006) (rejecting the
argument that Goodwin categorically bars a presumption of vindictiveness from arising
in the pretrial setting). Although Goodwin generally counsels against a finding that a
sufficient prosecutorial stake has arisen in the pretrial context, it has certainly not
eliminated the possibility that a district court might conclude exactly that. Instead,
“[e]ach situation will necessarily turn on its own facts.” Andrews, 633 F.2d at 454;
accord Bragan, 249 F.3d at 481.

        The government counters that, even if Goodwin does not entirely preclude a
district court from finding that the requisite stake exists in the pretrial setting, the district
court could not have done so on the circumstances of LaDeau’s case. In this vein, the
government emphasizes that we have previously relied upon Goodwin to uphold a
district court’s denial of a motion to dismiss an indictment as vindictive where the
defendant claimed that the prosecutor added charges against him in retaliation for the
defendant’s plans to file a future motion to suppress. See Suarez, 263 F.3d at 479. We
concluded that the defendant’s planned motions “were not particularly exceptional”
given that many defendants file similar motions, and we observed that “the additional
burden on the prosecution from the motions in proportion to the burden for the upcoming
trial itself [was] rather minimal.” Id. at 479–80. We therefore reasoned that it was well
within the district court’s discretion to conclude that the increased charges were an
No. 12-6611         United States v. LaDeau                                          Page 8


attempt to cajole the defendant into pleading guilty, rather than an attempt to punish him
for having filed the rather routine motions at issue. Id. at 480.

        The government also asserts that this appeal is controlled by United States v.
Moon, 513 F.3d 527 (6th Cir. 2008). There, we held that the district court did not abuse
its discretion in finding that the prosecution did not have a stake in deterring the
defendant’s right to file a motion to dismiss the indictment, even though the defendant
had made two successful motions to do so before the government obtained a third
indictment containing an additional charge. Id. at 535.

        Yet the government is mistaken in arguing that this precedent compels the
conclusion that the district court reversibly erred in finding the requisite stake in the
circumstances presented here. In fact, neither of the two rationales undergirding the
caution expressed in Goodwin against presuming vindictiveness in the pretrial setting
applies to the circumstances of this case. First, there is little reason to suspect that the
prosecutor’s view of LaDeau’s case changed significantly between the two indictments,
given that the government already possessed all of the relevant evidence that supported
the superseding indictment well before procuring the first indictment. See Goodwin,
457 U.S. at 381; Suarez, 263 F.3d at 480. “The decision in Goodwin stemmed largely
from the Supreme Court’s understanding of . . . the frequency with which prosecutors
must act on (and later compensate for) incomplete information or understanding.”
Meyer, 810 F.2d at 1247. Here, by contrast, the only substantive occurrence between
the two indictments was LaDeau’s successful suppression motion. The government has
never suggested that any other development altered its perception of the case during the
thirteen months that it was pending, so there is nothing to indicate that the superseding
indictment compensated for unexpected changes or an incomplete initial grasp of the
pertinent issues or facts.

        Second, the burden that LaDeau’s successful suppression motion placed upon the
government was significant. Goodwin catalogued the type of “routine[ ]” and minimally
burdensome filings that it thought unlikely to prompt a vindictive prosecutorial response:
“pretrial motions to suppress evidence; to challenge the sufficiency and form of an
No. 12-6611        United States v. LaDeau                                          Page 9


indictment; to plead an affirmative defense; to request psychiatric services; to obtain
access to government files; to be tried by jury.” Goodwin, 457 U.S. at 381. As we
recognized in Suarez, this list is only illustrative of motions that may typically be
expected to cause the government very little responsive burden. Suarez, 263 F.3d at 479.
In Suarez, for example, where the defendant had merely indicated that he was planning
to file a suppression motion at some point in the future, we rejected the defendant’s
argument that a presumption of vindictiveness was warranted, given that the only burden
that the government faced prior to filing a superseding indictment was the “rather
minimal” one of preparing a response to the motion. Id. at 480. And in Moon, although
the government was forced to return twice to the grand jury to obtain new indictments,
it was able to resuscitate its prosecution on charges identical to those originally brought
in the initial indictment simply by properly alleging an interstate commerce element.
Moon, 513 F.3d at 533, 536. See also Poole, 407 F.3d at 776 (agreeing that the
prosecution had an insignificant stake in deterring the defendant’s exercise of his right
to trial where the prosecution “welcomed” the initial mistrial).

       By contrast, LaDeau’s motion to suppress was neither routine nor typical: he
succeeded in suppressing crucial evidence and thereby eviscerated the government’s
possession case. As the government concedes, LaDeau’s successful motion eliminated
its ability to prosecute the charge alleged in the first indictment. Unlike in Suarez, the
prosecution here was saddled with the prospect of restarting LaDeau’s prosecution from
scratch, and unlike in Moon, the prosecution could not do so simply by making minor
adjustments to the language of the indictment and carrying on with the same substantive
counts as before. Plainly, LaDeau’s exercise of his suppression rights is not fairly
comparable to the minimally aggravating pretrial filings contemplated in Goodwin. It
did not inflict merely “some” incidental burden on the government’s ability to prove its
case; it inflicted a mortal blow. Goodwin, 457 U.S. at 381. Obtaining LaDeau’s
conviction on the initial charge of possession of child pornography became not simply
more of a chore for the prosecution than it had been before; it became impossible. See
United States v. Eddy, 737 F.2d 564, 572 (6th Cir. 1984) (presumption of vindictiveness
No. 12-6611         United States v. LaDeau                                         Page 10


arose where the government brought a perjury indictment against a defendant who had
been acquitted at trial).

        Nor are we convinced by the government’s concern that finding the requisite
stake in this case insufficiently preserves the prosecution’s ability to engage in effective
plea bargaining. To be sure, the Supreme Court long ago adopted the position that the
prosecution may legitimately threaten to bring harsher charges in order to induce a
defendant into pleading guilty, despite the fact that the harsher charges, if brought, might
appear to penalize a defendant for exercising his right to trial. Bordenkircher v. Hayes,
434 U.S. 357, 363–65 (1978). Because plea bargaining offers a “mutuality of advantage
to defendants and prosecutors,” id. at 363 (internal quotation marks omitted), and
because the prosecution’s ability to threaten a reluctant defendant with heightened
charges is a necessary feature of a robust plea bargaining process, increased charges
resulting from a breakdown of the plea bargaining process are not deemed vindictive,
regardless of the fact that the prosecutor’s goal is “to persuade the defendant to forgo his
constitutional right to stand trial.” Goodwin, 457 U.S. at 378; see id. at 378 n.10.

        But the increased charge here did not stem from the plea bargaining process. Cf.
Suarez, 263 F.3d at 480. Instead, the government “unilateral[ly] impos[ed]” the more
severe charge without engaging LaDeau in any of “the give-and-take” compromise
through which LaDeau could negotiate a concession or benefit. Bordenkircher, 434 U.S.
at 362.     Nothing in our holding today detracts from Bordenkircher because
Bordenkircher simply does not apply to the facts of this case. See Andrews, 633 F.2d
at 456 (“Bordenkircher must be confined to the plea bargaining context in which it
arose.”).

        Goodwin left undisturbed the uncontroversial premise explicated in Blackledge:
the likelihood that a defendant’s exercise of his rights will spur a vindictive prosecutorial
response is indexed to the burden that the defendant’s conduct has placed on the
prosecution. See Goodwin, 457 U.S. at 383; Blackledge, 417 U.S. at 27. When the
prosecution “is forced to do over what it thought it had already done correctly,” United
States v. Roach, 502 F.3d 425, 444 (6th Cir. 2007) (internal quotation marks omitted),
No. 12-6611        United States v. LaDeau                                        Page 11


or where “duplicative expenditures of prosecutorial resources” are required, Goodwin,
457 U.S. at 383, the prosecution’s stake in discouraging the defendant’s exercise of a
right may be “considerable.” Blackledge, 417 U.S. at 27. Despite the government’s
assertions, the same analysis applies here. LaDeau’s successful suppression motion
forced the government to restart its prosecution from square one in order to prevent him
from “going free”—almost exactly the sort of burden that Blackledge identified as
supporting a presumption of prosecutorial vindictiveness. 417 U.S. at 27. We reject the
government’s invitation to narrowly construe Blackledge where Goodwin does not
require it, and we agree with LaDeau that the district court did not abuse its discretion
in determining that the requisite prosecutorial stake existed on the circumstances of his
case.

                                            B.

        The government also contests the district court’s ruling that it was unreasonable
for the government to charge LaDeau in the superseding indictment under a receipt
theory instead of under a possession theory. As a general matter, a superseding
indictment is potentially vindictive only if it “add[s] additional charges or substitute[s]
more severe charges based on the same conduct charged less heavily in the first
indictment.” Suarez, 263 F.3d at 480. As we pointed out in Andrews, “[a] prosecutor
who adds on extra charges after the exercise of a procedural right is arguably acting less
vindictively than a prosecutor who substitutes a more severe charge for a less severe
one.” Andrews, 633 F.2d at 454. “In the first situation, a prosecutor might well have
made an honest mistake,” but “in the second situation, the prosecutor will have already
exercised his discretion, and the probability that the prosecutor acted vindictively is
higher.” Id.

        Despite the government’s attempt to characterize LaDeau’s superseding
indictment as containing an “alternative” charge rather than a “substituted” charge, there
is no real question that the latter is the case here. The charge in the superseding
indictment was based on the same conduct underlying the charge in the initial
indictment, the prosecution obtained no evidence supporting the superseding indictment
No. 12-6611        United States v. LaDeau                                       Page 12


that it did not already possess prior to obtaining the initial indictment, and the
conspiracy-to-receive count that was charged in the superseding indictment carries
longer mandatory minimums and maximums than the possession count that was initially
charged. Under Andrews, the likelihood that the prosecution acted unreasonably is thus
somewhat increased. Id.; see Suarez, 263 F.3d at 480.

       The government’s asserted rationales for its charging decisions do not diminish
this enhanced possibility of vindictiveness. The government does not seriously dispute
the district court’s finding that, after LaDeau’s motion to suppress was granted, the
government had three charging options: (1) conspiracy to possess child pornography,
in violation of 18 U.S.C. § 2252A(b)(2), which carries an identical penalty to the offense
originally charged—zero to ten years; (2) conspiracy to receive child pornography, in
violation of 18 U.S.C. § 2252A(b)(1), which carries a penalty of five to twenty years;
or (3) conspiracy to receive or possess child pornography, in violation of the general
conspiracy statute, 18 U.S.C. § 371, which carries a penalty of zero to five years.

       Given LaDeau’s successful suppression of evidence indicating that he actually
possessed child pornography, it was clearly reasonable for the government to adjust to
the new posture of the case by recalibrating its prosecution toward a conspiracy theory.
LaDeau concedes as much, indicating that it would have been reasonable for the
government to obtain a superseding indictment charging him with conspiracy to possess
child pornography under § 2252A(b)(2). As a corollary, LaDeau concedes that there was
no need for the government to charge him under § 371.

       But while a recalibration from a possession charge to a conspiracy-to-possess
charge would have been a reasonable response to LaDeau’s successful suppression
motion, the district court did not abuse its discretion in finding that there was no
reasonable basis for the government’s decision to shift from a possession theory to a
receipt theory when the latter carried a five-year mandatory minimum that the former
did not. According to the government, it was reasonable to pursue a receipt conspiracy
rather than a possession conspiracy because the two charges were not equally provable;
instead, “the evidence available to the government best fit a charge of conspiracy to
No. 12-6611           United States v. LaDeau                                                 Page 13


receive” rather than conspiracy to possess. This is ostensibly because the pertinent
letters discussed “how to obtain child pornography over the internet, i.e., how to receive
it” rather than detailing the concealment or preservation of child pornography “already
in [LaDeau’s] possession.”

         But as LaDeau observes, the evidence relating to the conspiracy remained
unchanged over the entire course of the prosecution; there is no new revelation or
discovery to support the government’s sudden shift to a receipt theory from a possession
theory.2 At any point in LaDeau’s case, the government could have charged him with
either receipt or possession of child pornography, see United States v. Ehle, 640 F.3d
689, 695 (6th Cir. 2011), yet it chose to pursue the harsher charges only after his
successful suppression motion. The government has repeatedly shifted its stance on why
its charging decision was reasonable, but it has never persuasively demonstrated that the
evidentiary landscape has materially altered, that it was previously impossible to bring
a receipt charge, that it “needed time to unravel” complex evidentiary or legal issues,
that it was tactically hedging its ability to admit certain key evidence, or the like.
Suarez, 263 F.3d at 480–81. See also Bragan, 249 F.3d at 482. In fact, the government
now attempts to explain its conduct by arguing that it would be difficult to explain to a
jury that someone who conspires to download and receive child pornography necessarily
conspires to possess it. But at this point, the government is grasping at straws. See Ehle,
640 F.3d at 695 (“As a matter of plain meaning, one obviously cannot ‘receive’ an item
without then also ‘possessing’ that item, even if only for a moment.”). Pursuing a
harsher charge solely to evade such a marginal prospect of jury confusion cannot on its
own render the prosecution’s decision reasonable, and we agree with the district court
that the arguments articulated by the government in defense of its charging decision here
are unacceptably flimsy.




         2
          Obviously, as the government stresses, the evidence in the case underwent an objective change:
the images themselves were excluded from evidence. But the evidence relating to the conspiracy—and
to whether the conspiracy was directed at receiving the images (rather than merely possessing them)—did
not.
No. 12-6611            United States v. LaDeau                                                    Page 14


                                                    C.

         The government concedes that, absent the rationales asserted for the first time
in the affidavit submitted with the government’s motion to reconsider, its evidence was
insufficient to rebut the presumption of vindictiveness. Nevertheless, the government
contends that the district court abused its discretion in ruling that the affidavit did not
dislodge the presumption of vindictiveness.

         We are not persuaded that the subjective rationales offered by the government
in its affidavit are sufficiently “objective” explanations for the government’s conduct,
as is required in order to avoid the “difficult and unpleasant decision-making” that would
be demanded of a court assessing a prosecutor’s subjective good faith assertions.
Andrews, 633 F.2d at 456; see Bragan, 249 F.3d at 482 (although circumstances such
as “governmental discovery of previously unknown evidence,” “previous legal
impossibility,” prior unavailability of the grand jury, or inexperience of the prosecutor
may suffice to rebut a presumption of vindictiveness, statements that a prosecutor
“committed a mistake” do not). But in any event, a motion to reconsider generally is not
a vehicle to reargue a case; it may not be used to raise arguments that could have been
raised on initial consideration. See In re G.A.D., Inc., 340 F.3d 331, 334 (6th Cir. 2003)
(Rule 60(b)); Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374
(6th Cir. 1998) (Rule 59(e)).3 Given that the government clearly could have obtained
an affidavit outlining its own internal charging deliberations prior to the court’s hearing
on LaDeau’s motion to dismiss, the district court did not abuse its discretion in denying
the government’s motion to reconsider and declining to give dispositive weight to the
affidavit proffered by the government at that time.




         3
           We note that the Federal Rules of Criminal Procedure do not necessarily prohibit the filing of
a motion for reconsideration of an order dismissing an indictment, cf. United States v. Dotz, 455 F.3d 644,
648 (6th Cir. 2006) (“In the sentencing context, there is simply no such thing as a ‘motion to reconsider’
an otherwise final sentence.”), and we therefore rely, as do the parties, on analogous precedent arising
under the Federal Rules of Civil Procedure. See, e.g., United States v. Correa-Gomez, 328 F.3d 297, 299
(6th Cir. 2003) (discussing the imperfect portability of Rule 59(e) into the context of a criminal case, but
nevertheless assuming that the government could validly file a motion asking the district court to
reconsider its order dismissing the indictment for selective prosecution).
No. 12-6611            United States v. LaDeau                                                   Page 15


         The government attempts to skirt this reality by faulting the district court’s
procedural handling of LaDeau’s motion to dismiss. According to the government, a
district court resolving a motion to dismiss an indictment for prosecutorial vindictiveness
must bifurcate its determination of the motion. The government’s argument relies
wholly on a single sentence in Bragan, where we observed, “Once a court has found that
a realistic likelihood of vindictiveness exists, the government bears the burden of
disproving it or justifying the challenged state action.” Bragan, 249 F.3d at 482. This,
the government claims, directs that the government has no obligation to present evidence
rebutting the presumption of vindictiveness until after the district court has first made
a finding of vindictiveness on the record. In the government’s view, it was deprived of
an opportunity to rebut the presumption in LaDeau’s case because the district court
found that the government had failed to rebut the presumption of vindictiveness in the
same order in which it found that the presumption had arisen.

         But the government extracts from Bragan a rule that is not there. Bragan
contains no requirement that a district court proceed piecemeal in adjudicating a motion
to dismiss an indictment for prosecutorial vindictiveness; it sets forth only a logical
sequence, not a temporal one. See id. at 484. As a general matter, a district court is not
required to enter separate orders at each step of its reasoning solely in order to facilitate
parties who have failed to hedge the possibility of losing at an initial stage in the
analysis. We see no support in the record for the government’s assertion that its
prosecutorial mission would have been seriously compromised if the government were
required to explain itself on the record before the district court made a final finding as
to presumptive vindictiveness, and we see no sound reason to depart from our general
antipathy to piecemeal litigation on the circumstances presented here.4




         4
           To the extent that rebutting the presumption could entail exposing sensitive non-public details,
such as the identity of confidential informants or details of the prosecution’s work product, such concerns
may appropriately be mitigated in the district court’s discretion through procedures such as in camera
review or a bifurcated ruling as contemplated by the government. See United States v. Hanna, 661 F.3d
271, 294 (6th Cir. 2011); cf. In re Grand Jury Proceedings–Gordon, 722 F.2d 303, 309–10 (6th Cir. 1983).
We decline, however, to adopt the government’s position that the bifurcated procedure it proposes is
mandatory for a district court that is ruling on a motion to dismiss for prosecutorial vindictiveness.
No. 12-6611         United States v. LaDeau                                        Page 16


        In fact, the government represented in its initial opposition to LaDeau’s motion
to dismiss that it believed that it had “rebutted the presumption of vindictiveness,”
should any such presumption have been triggered.            At that time, evidently, the
government accepted the possibility that the district court would resolve both issues in
a single order. Its attempt now to attack a procedure that it accepted in the district court
without qualm until suffering an adverse ruling is without merit.

                                            IV.

        Here, the district court did not base its decision to dismiss the superseding
indictment upon an error of law or upon clearly erroneous factual findings. We find no
abuse of discretion in its decision and therefore decline to disturb its judgment.

        AFFIRMED.
