MEMORANDUM OPINION AND ORDER
AMUL R. THAPAR, District Judge.
Beverly Lockhart moved to dismiss, R. 348; R. 355, the most recent superseding indictment in this case, R. 336. The new indictment retained the previous indictment's only charge against Lockhart: conspiracy to distribute Schedule II controlled substances (Count I). Compare R. 16 at 1-3, with R. 336 at 1-3. The latest indictment also charged Lockhart with two new, identical counts of distributing oxycodone "on or about a day in March or April of 2011" (Counts II and III). R. 336 at 3-4.
Although the three counts allege similar conduct (distributing controlled substances), Count I is unrelated to Counts II and III. The indictment describes in detail the conspiracy charged in Count I: A doctor prescribed large amounts of controlled substances to Kentucky patients, Lockhart and others filled those prescriptions, and the patients distributed the controlled substances. See id. at 1-3. Counts II and III allege that Lockhart herself distributed controlled substances, id. at 3-4, via so-called "off-book" sales, i.e., illegally selling drugs to patients without a prescription. See R. 330 at 4-5.
Before filing the most recent superseding indictment, the government argued that Lockhart's off-book sales were part of the conspiracy charged in Count I. Id. When Lockhart moved to exclude evidence of those sales, the Court noted that the off-book sales appeared to be distinct from the charged conspiracy. See id. The Court therefore ordered the United States to brief whether the off-book sales were admissible to prove the conspiracy if it wished to introduce evidence of those sales. Id. at 7. Rather than brief the issue, however, the United States returned to the grand jury and obtained the new indictment, which added Counts II and III.
Lockhart contends that the Court should dismiss the indictment, because she is the victim of a vindictive prosecution. R. 348-1 at 3-5. In the alternative, Lockhart argues that the Court must at least dismiss Counts II and III, because they do not provide her with adequate notice of the offenses charged and could subject her to double jeopardy. R. 355-1 at 2-6. Although the Court denies both of Lockhart's motions, the Court will sever the trial of Count I from the trials of Counts II and III pursuant to its authority under Federal Rule of Criminal Procedure 14(a).
I. Lockhart Is Not the Victim of a Vindictive Prosecution
The Due Process Clause forbids a prosecutor from vindictively punishing a defendant for asserting her legal rights. United States v. Goodwin, 457 U.S. 368, 372 (1982). Lockhart argues that the prosecutor charged Counts II and III to punish her for filing various successful pretrial motions, including motions to exclude evidence and to dismiss certain charges in a related case. R. 348-1 at 5.
In this circuit, a defendant may prove that she is the victim of a vindictive prosecution in either of two ways. First, a defendant may prove "actual vindictiveness, " by adducing objective evidence that the prosecutor intended to punish the defendant. United States v. Poole, 407 F.3d 767, 774 (6th Cir. 2005). Second, a defendant may attempt to show that there is a "realistic likelihood of vindictiveness." Id. When a defendant raises a "realistic likelihood" claim, the court must analyze all the circumstances to determine "whether a reasonable person would think there existed a realistic likelihood of vindictiveness." United States v. Andrews, 633 F.2d 449, 454 (6th Cir. 1980) (en banc). To assess whether a "realistic likelihood of vindictiveness" exists, the Court must weigh two factors: (1) the prosecutor's stake in preventing assertion of the protected right, and (2) the reasonableness of the prosecutor's actions. See Poole, 407 F.3d at 776.
Lockhart contends that a series of choices by the prosecution suggest a realistic likelihood of vindictiveness. In two separate cases, the United States charged Lockhart with conspiring to commit health care fraud (the "fraud case, " No. 7:12-8-(2)) and conspiring to distribute controlled substances (the "drug case" or "this case, " No. 7:12-9-(4)). Before Lockhart was arraigned, the United States filed superseding indictments in both cases, adding charges of money laundering against other defendants and seeking the forfeiture of certain property in the fraud case. See No. 7:12-8-(2), R. 8; No. 7:12-9-(4), R. 16. Lockhart then moved to dismiss the fraud case, see R. 58, and was successful as to two counts. See R. 79 (adopting Magistrate Judge's recommendation, R. 75, to dismiss two counts). The government filed a second superseding indictment in the fraud case, adding the business Lockhart worked for as a defendant. See R. 82. After Lockhart moved to dismiss the revised indictment, R. 131, the government filed a third superseding indictment. R. 146. Finally, in this case, after Lockhart successfully moved to exclude certain evidence, including evidence of the off-book sales, see R. 330 at 5-8, the United States charged Counts II and III, R. 336 at 3-4.
Lockhart argues that the government has heaped additional charges on her at every turn, but she misreads the history of these cases. For example, Lockhart claims that the government sought the initial superseding indictments in response to her refusal to plead guilty. R. 348-1 at 2. But the record shows that Lockhart had not even been arraigned when the United States filed those indictments, see R. 82 (arraignment in drug case), and defense counsel does not dispute the government's assertion that no plea negotiations had taken place. Similarly, the addition of charges against other defendants has no bearing on whether Lockhart was vindictively prosecuted. The only charges added against Lockhart were Counts II and III, so only those counts can support Lockhart's vindictive prosecution claim.
The Prosecutor's Stake in Discouraging Lockhart's Pretrial Filings: Lockhart argues that the government added Counts II and III to punish her for filing successful motions to exclude certain evidence in the drug case and to dismiss various counts in the fraud case. R. 348-1 at 5. Pretrial motions-as opposed to the filing of an appeal- usually do not implicate a sufficient prosecutorial "stake" in the exercise of a protected right. See Poole, 407 F.3d at 776 ("[T]he prosecution's stake' is greater when it is forced to endure a complete new trial, or do over what it thought it had already done correctly.'") (quoting Goodwin, 457 U.S. at 383). In United States v. Suarez, the defendant claimed that the prosecutor responded vindictively to his intention to file motions to suppress and to dismiss. 263 F.3d 468, 479 (6th Cir. 2001). The court held that those motions were "not particularly exceptional, " and that the burden imposed on the prosecution by such motions was "minimal." Id. at 479-80. Lockhart's motions are no more exceptional or burdensome than the motions in Suarez, so it is tempting to say that Suarez forecloses Lockhart's claim.
In Andrews, however, an en banc panel of the Sixth Circuit held open the possibility that a defendant's pretrial motions may, in some cases, implicate a sufficient prosecutorial stake. 633 F.2d at 454. And unlike the defendant in Suarez -who only intended to file certain motions-Lockhart actually filed her motions and repeatedly prevailed. The Court need not decide whether those differences suffice to distinguish Suarez, however, because the prosecution behaved reasonably, so Lockhart's claim fails.
The Reasonableness of the Prosecutor's Conduct: Although many of the government's filings in these cases were inefficient, they were not unreasonable. Where the government adds charges after the exercise of a procedural right because it made an honest mistake, the addition of those charges is reasonable, not vindictive. See Andrews, 633 F.2d at 454. Andrews specifically noted that the decision to add charges where the defendant committed multiple criminal acts-rather than to substitute a more severe charge for a less severe charge-may well be the product of a prosecutorial error. Id. And that is precisely what happened here. The government candidly acknowledges that it added Counts II and III because it made a mistake. The prosecution charged a narrow conspiracy in Count I, but it thought that the conspiracy embraced the off-book sales. After the Court suggested that the charges were unrelated and ordered briefing on the issue, R. 330 at 4-5, the prosecutor returned to the grand jury and added Counts II and III. See R. 336 at 3-4.
As such, the government's mistake effectively resulted in an advisory opinion regarding how broadly the Court views the conspiracy charged in Count I. When the prosecutor realized his mistake, he elected to charge the off-book sales as separate crimes by adding Counts II and III. Unfortunately for Lockhart, the Constitution forbids vindictive charging decisions, not sloppy ones. Under Andrews, a reasonable observer would conclude that the prosecution added Counts II and III because it made an ...