## Facts

- Jeremy Brown was a federal prisoner.
- A prison guard assaulted Brown; the guard was later prosecuted and entered a guilty plea.
- After the guard’s prosecution, Brown filed a civil lawsuit related to the guard’s assault.
- Prison personnel knew about Brown’s civil suit and also knew Brown because he filed an unusually large number of grievances against prison staff.
- Brown was later indicted for assaulting a correctional officer by throwing feces and urine in the officer’s face, in violation of 18 U.S.C. § 111.
- Brown moved to dismiss the indictment, claiming the prosecution was unconstitutional because it was selective and/or vindictive retaliation for his lawsuit and grievance activity.

## Issues

1. Did Brown establish selective prosecution—i.e., that the government targeted him based on an improper motive and that similarly situated individuals were not prosecuted—so that the indictment should be dismissed?
2. Did Brown establish vindictive prosecution—i.e., that the indictment was brought to punish him for exercising protected rights such as filing grievances and a civil suit—so that due process required dismissal?

## Decision

- The court denied Brown’s motion to dismiss the indictment.
- The court concluded Brown did not meet the demanding showing required to justify dismissal on either selective-prosecution or vindictive-prosecution grounds.
- The case proceeded with the indictment remaining in place.

## Legal Principles

- Charging decisions are generally committed to prosecutorial discretion and are presumed lawful; a defendant bears a heavy burden to overcome that presumption.
- Selective prosecution requires proof of both discriminatory effect (others similarly situated were not prosecuted) and discriminatory purpose (the decision to prosecute rested on an impermissible reason, including retaliation for protected activity).
- Vindictive prosecution is not established by suspicion or timing alone; a defendant must show either (a) circumstances that justify a presumption of retaliation in limited settings, or (b) actual retaliatory motive supported by objective evidence.
- An initial decision to bring charges, without more, typically does not trigger a presumption of vindictiveness.

## Conclusion

The court refused to dismiss the § 111 indictment because Brown’s claims of selective and vindictive prosecution did not satisfy the strict standards governing challenges to prosecutorial charging decisions; his history of grievances and a civil lawsuit against prison staff, standing alone, did not warrant dismissal absent strong evidence that the government charged him for an improper retaliatory reason and treated similarly situated individuals differently.


United States v. Brown, 862 F. Supp. 2D 1276 (2012)