UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Case No. 25-cr-203 (JMC)
JONATHAN RAY,
Defendant.
MEMORANDUM OPINION
Before the Court is Jonathan Ray’s motion to dismiss for vindictive prosecution and request
for evidentiary hearing. ECF 51. Ray’s motion addressed the first superseding indictment, ECF
31, but the second superseding indictment, ECF 56, rests on the same charges, see ECF 78, and
the Court understands that Ray continues to challenge his prosecution on vindictiveness grounds.
The Court therefore addresses the arguments raised in the motion and construes Ray as seeking to
dismiss the operative indictment on the same grounds. The Court has reviewed the Parties’ filings,
ECF 51; ECF 66, and concludes that additional argument would not aid the Court in resolving the
motion. For the reasons stated below, Ray’s motion to dismiss for vindictive prosecution and
request for evidentiary hearing is DENIED.1
I. BACKGROUND
The Government initially charged Ray with one count of violating 18 U.S.C. § 922(g)(1),
for unlawfully possessing a firearm and ammunition while having previously been convicted of a
felony. ECF 9 at 1. Ray rejected the Government’s plea offer and sought to suppress the evidence
1
Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page.
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allegedly obtained from him. See ECF 27; ECF 66 at 5–6. Shortly after the Court set a trial date
and denied Ray’s motion to suppress, ECF 66 at 6, the Government obtained a superseding
indictment that not only charged Ray with violating 18 U.S.C. § 922(g)(1), but also included two
additional counts for possessing with intent to distribute fentanyl (21 U.S.C. § 841) and possessing
a firearm in connection with a drug-trafficking offense (18 U.S.C. § 924(c)), ECF 31. The charged
fentanyl was allegedly recovered from Ray at the same time as the gun that formed the basis of the
initial indictment. See ECF 66 at 3; ECF 1-1. The Government later obtained a second superseding
indictment charging the same offenses. ECF 56.
II. ANALYSIS
The Fifth Amendment “prohibits prosecutors from . . . filing increased charges in order to
retaliate against a defendant for exercising a legal right.” United States v. Slatten, 865 F.3d 767,
798–99 (D.C. Cir. 2017) (per curiam). Absent “objective evidence” of a prosecutor’s “actual
vindictiveness,” a defendant can establish a presumption of vindictiveness “when the facts
indicate” it is “a realistic likelihood.” United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir.
1987). While this is a fact-specific inquiry, additional charges following “routine[] assert[ions]”
of pretrial “procedural rights” such as moving for suppression or opting for a trial are unlikely to
establish a presumption of vindictiveness standing alone. Id. at 1247; accord United States v.
Goodwin, 457 U.S. 368, 381 (1982). Nor does a change in the charging decision after the
breakdown of plea negotiations create an inference of vindictiveness. See Goodwin, 457 U.S. at
382–83 (“The mere fact that a defendant refuses to plead guilty and forces the government to prove
its case is insufficient to warrant a presumption that subsequent changes in the charging decision
are unjustified.”). Instead, a defendant must point to some other fact which makes it “more likely
than not” that the Government’s conduct is “attributable to . . . vindictiveness.” United States v.
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Meadows, 867 F.3d 1305, 1311 (D.C. Cir. 2017); accord Slatten, 865 F.3d at 799. Until they do
so, the Government has no “burden of justification.” Slatten, 865 F.3d at 801.
Ray does not suggest that there is objective evidence of actual vindictiveness and instead
seeks to establish its presumption. ECF 51 at 2. He argues that his indictment on new drug and gun
charges days after the denial of his suppression motion stemmed not from the Government’s
“newly developed understanding of the case,” but from its desire to punish him for “litigating
suppression and requesting a trial.” Id. at 2, 5. Indeed, Ray goes as far as to suggest that the “new
charges”—alone—“establish a presumption of vindictiveness.” ECF 51 at 2. As the Court
observed above, however, that is not the law. And there is no requirement that changes in charging
decisions must result from newly gathered evidence or a reimagined legal theory to avoid any
presumption of vindictiveness. See Goodwin, 457 U.S. at 381–82 (“A prosecutor should remain
free before trial to exercise the broad discretion entrusted to him to determine the extent of the
societal interest in prosecution. . . . The initial charges filed by a prosecutor may not reflect the
extent to which an individual is legitimately subject to prosecution.”). Other than observing that
the Government obtained its superseding indictments after the Court set the date for trial and
denied the motion to suppress, Ray identifies no facts making it “more likely than not” that the
Government’s superseding indictment was retaliatory. Meadows, 867 F.3d at 1311.
The Court is not persuaded that the short time between the suppression hearing and the
subsequent indictment(s) supplies that additional fact. Ray characterizes the superseding
indictment as an unjustifiably “sudden” escalation of “a contested sentencing allegation into two
new crimes,” ECF 51 at 4–5, and makes much of the fact that the Government obtained a new
indictment “just five days” after denial of his suppression motion, id. at 1. But the temporal
proximity between Ray’s unsuccessful motion and the new indictment does not, standing alone,
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create an inference of vindictiveness. See United States v. Allgood, 610 F. Supp. 3d 239, 249–50
(D.D.C. 2022) (not presuming vindictiveness from “increased charges against the defendants
shortly after they asserted their right to a jury trial”). This is especially true when Ray was engaged
in plea negotiations that gave him notice that the Government might bring additional drug-related
charges should the case proceed. See ECF 66 at 4–5, 12; ECF 66-1 at 2; ECF 66-2 at 2; see also
Goodwin, 457 U.S. at 380 (“For just as a prosecutor may forgo legitimate charges already brought
in an effort to save the time and expense of trial, a prosecutor may file additional charges if an
initial expectation that a defendant would plead guilty to lesser charges proves unfounded.”);
Meyer, 810 F.2d at 1248 (noting “the possibility that in order to satisfy constitutional requirements,
the government need only note on the Citation Form that the defendant will expose himself to
enhanced charges if he elects to go to trial”). And as the Court explained in its order denying Ray’s
request for in camera review of grand jury materials, ECF 78, Ray has identified no basis for the
Court to conclude that the § 924(c) predicate error in the first superseding indictment reflected
“hasty” vindictiveness, ECF 76 at 2, rather than simple oversight.2 Without more, the Court can
only conclude that this case presents another “run-of-the-mill pretrial situation” in which
vindictiveness was “unlikely” to arise. Meyer, 810 F.2d at 1247; accord Goodwin, 457 U.S. at 381.
The Court will, therefore, not presume it.
Nor does the Court find that Ray’s cited cases are helpful to him. Ray relies on Meyer,
810 F.2d 1242, and United States v. LaDeau, 734 F.3d 561 (6th Cir. 2013), but they are plainly
distinguishable. See ECF 66 at 12–16. Unlike this case, Meyer concerned “something other than
routine invocations of procedural rights on the part of individual defendants.” 810 F.2d at 1247.
2
The Court incorporates by reference its discussion of the circumstances leading the Government to obtain a second superseding indictment to correct what the Court determined to be a non-substantive error in the cross-referenced predicate offense to Count Three. See ECF 78.
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There, approximately 200 protesters were arrested for demonstrating without a permit. Id. at 1243.
Though most resolved the matter by paying a $50 fine, the government filed an additional charge
against those who demanded a trial. See id. at 1243–44. This starkly “disparate treatment” of
similar defendants created “suspicion” that the government’s “divergent” charging decisions were
vindictive. Id. at 1246. This case contains no similar facts giving rise to such suspicion nor any
allegation that Ray has been treated differently than any other defendant who rejects a plea offer
that limits their charging exposure. See ECF 66 at 15. And LaDeau involved a superseding
indictment brought after defendant’s successful suppression motion “inflicted a mortal blow” on
the government’s case. 734 F.3d at 569. The burden this created on the government—forcing it to
“restart its prosecution from square one”—supported an inference of “vindictive prosecutorial
response.” Id. at 569–70. By contrast, Ray’s suppression motion—which was straightforward,
involved a short hearing over the course of two days, and was ultimately denied—was “routine,
imposed minimal burden, and did not require the government to rethink its prosecution strategy.”
ECF 66 at 14; see also id. at 6.
Finally, because Ray has not shown a realistic likelihood of vindictiveness, the
Government has no “burden of justification.” Slatten, 865 F.3d at 801. Accordingly, the discovery
and hearing requested by Ray is unwarranted. See ECF 51 at 6–9.
* * *
For the foregoing reasons, Ray’s motion to dismiss for vindictive prosecution and request
for evidentiary hearing, ECF 51, is DENIED. Ray’s motion for hearing on the motion to dismiss
for vindictive prosecution, ECF 59, is also DENIED as moot.
A separate order will follow this memorandum opinion.
SO ORDERED.
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JIA M. COBB
United States District Judge
Date: October 2, 2026
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