Ancillary Evidence and the “Government Stake” Requirement:
United States v. Mincy and the Limits of Pretrial Vindictive Prosecution Claims

I. Introduction

In United States v. Jason Eugene Mincy, No. 24‑4019 (6th Cir. Nov. 24, 2025) (not recommended for publication), the Sixth Circuit revisits the doctrine of prosecutorial vindictiveness in the pretrial setting, particularly when the government files a superseding indictment after a defendant litigates a motion to suppress.

The case arises from a street arrest in Cincinnati that uncovered methamphetamine, a loaded gun, cash, and additional drug-packaging materials. After the defendant moved to suppress certain items, the government responded by filing a superseding indictment that substantially increased his sentencing exposure—from a zero-to-twenty-year range to a ten-years-to-life range, via a higher quantity threshold and a recidivist enhancement.

On appeal, Mincy raised two issues:

a vindictive prosecution challenge to the superseding indictment, and
a claim of ineffective assistance of counsel relating to plea negotiations and the decision to press the suppression motion.

Judge Bloomekatz, writing for a unanimous panel, holds that the defendant failed to meet the threshold showing necessary to trigger a presumption of vindictive prosecution. The opinion emphasizes that a presumption only arises when the challenged pretrial motion threatens a “mortal blow” or at least a “grave threat” to the government’s case, making trial “much tougher.” Because the evidence Mincy sought to suppress was deemed ancillary, not central, to the prosecution’s case, no presumption attached.

The panel also declines to reach the ineffective assistance claim on direct appeal, instead directing Mincy to pursue that argument in a post-conviction motion under 28 U.S.C. § 2255.

Judge Readler concurs fully in the judgment and majority opinion but writes separately to propose a more sweeping rule: he argues that a presumption of prosecutorial vindictiveness should never apply to pretrial charging decisions, including those made in the shadow of plea bargaining and suppression litigation.

Although unpublished and therefore non-binding within the Sixth Circuit, Mincy is a significant data point in the ongoing clarification of:

what constitutes a “sufficient government stake” in a pretrial motion for purposes of vindictive prosecution, and
how far courts should go in policing charging decisions that occur in the ordinary give‑and‑take of plea bargaining and pretrial litigation.

II. Factual and Procedural Background

A. The Arrest and Evidence

In February 2020, Cincinnati police officer Brandon Mossberger, patrolling in the Over‑the‑Rhine neighborhood, recognized Jason Eugene Mincy and knew he had outstanding warrants. When the officer attempted to arrest him, Mincy fled on foot. The officer pursued, called for backup, and ultimately stopped Mincy by deploying a Taser.

Critical facts:

Officer Mossberger testified that, just before the arrest, he observed Mincy engage in a hand‑to‑hand drug transaction in a high drug‑trafficking area.
A search incident to arrest of Mincy’s person yielded:
- a bag of suspected methamphetamine,
- a loaded firearm, and
- $167 in cash, including forty‑seven one‑dollar bills.
Once handcuffed, Mincy had a drawstring bag removed from his shoulders:
- one officer quickly looked into the bag while standing next to Mincy,
- another then carried it away and conducted a more thorough search, finding, among other items, a box of plastic sandwich bags.
Lab testing later showed the seized drug mixture was 17 grams containing methamphetamine, including approximately 12 grams of pure methamphetamine.

B. Initial Indictment and Motion to Suppress

The government initially indicted Mincy for possession of a “detectable amount” of methamphetamine with intent to distribute under 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C), punishable by zero to twenty years’ imprisonment.

While plea discussions were ongoing, Mincy filed a motion to suppress the plastic sandwich bags discovered in the later, more remote search of the drawstring bag. He argued that this was not a lawful search incident to arrest. The district court repeatedly continued the suppression hearing at his request to allow him to further consider a plea.

During that continuance period, the government received the additional purity analysis from the laboratory, establishing that the drugs contained about 12 grams of actual methamphetamine—high enough to support the more serious quantity threshold in § 841(b)(1)(B) (five grams or more of actual methamphetamine).

C. Superseding Indictment and Increased Sentencing Exposure

When plea negotiations collapsed, the government:

filed a superseding indictment charging Mincy under 21 U.S.C. § 841(b)(1)(B) (five grams or more of methamphetamine), and
filed notice of intent to seek a statutory enhancement based on a prior “serious drug felony.”

These steps substantially changed the landscape:

Original exposure: 0–20 years (under § 841(b)(1)(C)).
After superseding + enhancement: 10‑year mandatory minimum and up to life imprisonment (§ 841(b)(1)(B)).

D. Motion to Dismiss for Vindictive Prosecution and Suppression Hearing

Mincy moved to dismiss the superseding indictment on the ground of vindictive prosecution, arguing the government escalated charges to punish him for filing the suppression motion and thus violated due process.

The government responded that the superseding indictment was justified by:

the new purity evidence (supporting a higher quantity charge), and
the breakdown of plea negotiations.

The district court held an omnibus hearing on both the motion to suppress and the motion to dismiss. At that hearing:

Officer Mossberger testified about the arrest, the search, and his observations (including the hand‑to‑hand transaction).
Mincy cross‑examined the officer and presented expert testimony on the evidentiary value of the sandwich bags for proving intent to distribute.
Notably, Mincy presented no direct evidence—such as statements or documents—showing retaliatory intent by the prosecutor during plea negotiations.

The district court ultimately:

denied the suppression motion, calling it a “close case” that “barely” warranted denial, and
denied the motion to dismiss for vindictive prosecution.

Mincy then entered a guilty plea and received a sentence of thirteen yearsnot appeal the suppression ruling itself.

III. Summary of the Sixth Circuit’s Opinion

A. Vindictive Prosecution Claim

The court reviews the denial of Mincy’s motion to dismiss for abuse of discretion, deferring to factual findings unless clearly erroneous and reviewing legal conclusions de novo.

Under Sixth Circuit precedent, a defendant may establish a vindictive prosecution claim either by:

proving actual vindictiveness (direct evidence of retaliatory motive), or
invoking a presumption of vindictiveness based on the circumstances.

Mincy did not pursue an actual vindictiveness theory on appeal. Thus, the sole question was whether he was entitled to a presumption of vindictiveness. For such a presumption, Sixth Circuit law (drawing particularly on United States v. Howell, United States v. LaDeau, and United States v. Zakhari) requires the defendant to show:

the government had a sufficient “stake” in discouraging or punishing the exercise of a protected right (here, filing the suppression motion), and
the government’s decision to bring new or more serious charges was somehow unreasonable.

The panel holds that Mincy failed at step one: he did not show that the government had a sufficient stake in his suppression motion to justify presuming retaliation. Specifically:

Even if the sandwich bags were suppressed, the government still had substantial evidence of possession with intent to distribute:
- the quantity and purity of the methamphetamine,
- the loaded firearm,
- the cash (especially in small denominations), and
- Officer Mossberger’s testimony about the hand‑to‑hand sale in a high‑drug‑trafficking area.
Even Mincy’s own expert conceded that the firearm and the pattern of cash denominations could serve as inferential evidence of intent to distribute.

Thus, the suppression motion threatened only the loss of ancillary evidence, not evidence whose suppression would inflict a “mortal blow” or present a “grave threat” to the prosecution. Because the government’s case would not be “much tougher” at trial without the sandwich bags, the government lacked the kind of high “stake” that Sixth Circuit precedent requires to trigger a presumption of vindictiveness.

Having found no sufficient stake, the panel affirms the district court’s denial of the vindictive prosecution claim and does not reach the second “unreasonableness” prong or the government’s proffered non‑retaliatory explanations.

B. Ineffective Assistance of Counsel Claim

Turning to ineffective assistance, the panel observes that such claims are generally not addressed on direct appeal unless “trial counsel’s ineffectiveness is apparent from the record.” Ineffective assistance claims are governed by Strickland v. Washington, which requires the defendant to show:

deficient performance by counsel (falling below an objective standard of reasonableness), and
prejudice (a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different).

Mincy ties his ineffective assistance claim to plea negotiations and his counsel’s decision to litigate the suppression motion despite an alleged threat of a superseding indictment. But the record contains no detailed evidence regarding those negotiations—no documentation of offers, counteroffers, or advice given—so the appellate court has no basis to evaluate either the performance or prejudice prong of Strickland.

Relying on Massaro v. United States, which emphasizes that the district court is the “best suited” forum for developing a factual record on ineffective assistance, the panel dismisses the ineffective assistance claim without prejudice, explicitly permitting Mincy to raise it in a timely § 2255 motion.

C. The Concurrence

Judge Readler concurs fully but writes separately to question the viability of applying any presumption of vindictiveness to pretrial charging decisions. He argues that:

Historically, the presumption developed in post‑trial contexts (e.g., when prosecutors add more serious charges or seek harsher penalties after a defendant exercises a right to appeal or to a new trial).
In the pretrial environment—dominated by plea bargaining and fluid assessments of the case—charging decisions are provisional and part of legitimate strategy, not indicative of retaliation.
Extending a presumption of vindictiveness to ordinary pretrial charging adjustments risks undermining plea bargaining and constraining prosecutorial discretion beyond what due process requires.

He notes that most other circuits do not apply a presumption of vindictiveness in pretrial settings, and he suggests that future Sixth Circuit panels should clarify that the pretrial context “is no place” to employ the presumption, including when prosecutors condition plea offers on withdrawing suppression motions.

IV. Precedents and Doctrinal Framework

A. Vindictive Prosecution: Core Supreme Court Cases

1. North Carolina v. Pearce and Blackledge v. Perry

The notion of “vindictiveness” in criminal prosecution stems from cases like:

North Carolina v. Pearce, 395 U.S. 711 (1969) – Addressed judicial vindictiveness, holding that a judge may not impose a harsher sentence after a successful appeal as punishment for having exercised appellate rights, absent objective reasons in the record.
Blackledge v. Perry, 417 U.S. 21 (1974) – Applied the same core concern to prosecutors. After a defendant invoked his right under state law to a trial de novo on a misdemeanor conviction, a prosecutor responded by indicting him for a felony based on the same conduct. The Court held this created a “realistic likelihood of vindictiveness,” justifying a presumption of unconstitutional retaliation.

Blackledge established the doctrinal structure used in later cases: when the sequence of events strongly suggests retaliation for the exercise of a protected right, courts may apply a prophylactic presumption of vindictiveness. The government must then rebut the presumption with objective, non‑retaliatory reasons.

2. Bordenkircher v. Hayes and United States v. Goodwin

Two later Supreme Court decisions draw a critical distinction between pretrial and post‑trial settings, and between:

vindictiveness (punishment for exercising a right), and
legitimate plea bargaining leverage.

In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the prosecutor told the defendant that if he did not plead guilty to a lesser offense, he would face indictment under a habitual offender statute with a much higher penalty. The defendant declined to plead, was indicted on the harsher charge, and convicted. The Supreme Court held this did not violate due process, recognizing that:

a prosecutor may threaten more serious charges during negotiations, and
may follow through on that threat if the defendant rejects the plea, so long as the prosecutor has probable cause and the decision falls within traditional charging discretion.

In United States v. Goodwin, 457 U.S. 368 (1982), the Court refused to infer a presumption of vindictiveness when a misdemeanor defendant who requested a jury trial later faced felony charges. The Court stressed:

The pretrial context is fluid; a prosecutor’s assessment of the case “may not have crystallized.”
Increases in charges before trial often reflect evolving evaluations of evidence and strategy, not retaliation.
Accordingly, courts should be reluctant to presume vindictiveness from pretrial upcharging alone.

Goodwin thus cautions that pretrial charging decisions, especially in connection with plea bargaining, generally should not trigger a presumption of vindictiveness absent truly extraordinary circumstances.

B. The Sixth Circuit’s Vindictive Prosecution Framework

1. United States v. Andrews and United States v. Poole

The Sixth Circuit has long recognized that prosecutorial vindictiveness can extend to retaliation for exercising pretrial rights, such as filing motions to suppress. In United States v. Andrews, 633 F.2d 449 (6th Cir. 1980) (en banc), the court reaffirmed the principle that the Due Process Clause bars punishing a defendant for exercising statutory or constitutional rights, including pretrial motions.

In United States v. Poole, 407 F.3d 767 (6th Cir. 2005), the court described two routes for proving vindictive prosecution:

Actual vindictiveness – direct evidence of retaliatory motive (e.g., explicit statements or documents); or
Presumed vindictiveness – where the circumstances themselves create a realistic likelihood of retaliation, shifting the burden to the government to rebut.

2. LaDeau, Zakhari, and Howell: The “Government Stake” Requirement

Three relatively recent Sixth Circuit decisions are critical to the framework applied in Mincy:

United States v. LaDeau, 734 F.3d 561 (6th Cir. 2013):
- The defendant moved to suppress evidence of child pornography.
- After suppression, there was no longer any admissible evidence of possession of child pornography.
- The court held that suppression had inflicted a “mortal blow” to the original charge and that a later reindictment raised a sufficient “government stake” to trigger a presumption of vindictiveness.
United States v. Zakhari, 85 F.4th 367 (6th Cir. 2023):
- The defendant sought to suppress an “especially compelling” videotaped confession.
- The court held that suppression would present a “grave threat” and make the government’s burden at trial “much tougher,” again supporting a finding of sufficient government stake to trigger a presumption.
United States v. Howell, 17 F.4th 673 (6th Cir. 2021):
- Articulated the two‑pronged standard:
  1. the government must have a sufficient “stake” in deterring or punishing the exercise of a protected right; and
  2. the decision to file new or enhanced charges must be “somehow unreasonable.”
- Only when both are shown does the burden shift to the government to offer “objective, on‑the‑record” non‑retaliatory explanations (quoting LaDeau and Bragan v. Poindexter).

These cases anchor the “government stake” requirement. The presumption is reserved for situations where suppression or other pretrial rulings threaten to fundamentally cripple the government’s case, not merely complicate it.

3. Routine Motions and “Garden‑Variety” Litigation

The opinion in Mincy also cites:

United States v. Rosse, 716 F. App’x 453 (6th Cir. 2017), which holds that routine or “garden‑variety” pretrial motions do not ordinarily provide a basis for presuming vindictiveness.

Together with Andrews, LaDeau, and Zakhari, these cases reinforce that the presumption is an exceptional doctrine. Most ordinary exercises of pretrial rights, even if followed by upcharging, will not automatically trigger the presumption.

C. Ineffective Assistance of Counsel: Strickland and Massaro

Mincy’s ineffective assistance arguments are assessed under:

Strickland v. Washington, 466 U.S. 668 (1984), which sets the two‑part test for ineffective assistance.
Massaro v. United States, 538 U.S. 500 (2003), which emphasizes that ineffective assistance claims are usually best brought via § 2255 rather than on direct appeal, because they often require evidence outside the trial record.
United States v. Burrell, 114 F.4th 537 (6th Cir. 2024), reaffirming that appellate courts typically avoid deciding ineffective assistance claims on direct appeal unless the deficiency is apparent from the existing record.

These authorities justify the panel’s refusal to resolve Mincy’s ineffective assistance arguments on an incomplete record.

D. The Concurrence’s Precedent Use

Judge Readler’s concurrence ranges more broadly across Supreme Court and circuit precedent. In addition to the cases already noted, he cites:

Thigpen v. Roberts, 468 U.S. 27 (1984) – Recognizing a presumption where the prosecutor added a felony manslaughter charge after the defendant appealed a misdemeanor conviction.
State cases (e.g., State v. Phipps, State ex rel. Patterson v. Randall) where prosecutors sought the death penalty on remand after not doing so initially, raising vindictiveness concerns.
United States v. O’Lear, 90 F.4th 519 (6th Cir. 2024) – Holding that adding charges after a defendant rejects a plea is not presumptively vindictive; the concurrence reads this as aligning the Sixth Circuit with other circuits that refuse to extend Blackledge‑style presumptions to plea bargaining.
United States v. Batchelder, 442 U.S. 114 (1979) – Emphasizing that prosecutors have broad discretion to choose among overlapping statutory offenses.
United States v. Armstrong, 517 U.S. 456 (1996) – Noting the “presumption of regularity” that attaches to prosecutorial decisions.

He also canvasses a series of out‑of‑circuit decisions that, in his view, reflect the near‑unanimous refusal by other circuits to apply a presumption of vindictiveness to pretrial charging decisions (e.g., cases from the 1st, 2nd, 3rd, 4th, 5th, 7th, 9th, 10th, and 11th Circuits).

V. The Court’s Legal Reasoning

A. Step One: The “Government Stake” in the Suppression Motion

The majority’s analysis turns almost entirely on the first prong of the Sixth Circuit’s vindictive prosecution framework: whether the government had a sufficient stake in Mincy’s suppression motion to justify a presumption of retaliatory motive.

Key points:

Nature of the motion. Mincy’s motion targeted the plastic sandwich bags found in his drawstring bag. He argued that the bag search exceeded lawful bounds of a search incident to arrest.
What remained without the bags. Even if granted, suppression would still leave the government with:
- 17 grams of methamphetamine mixture (including about 12 grams of pure meth),
- a loaded firearm,
- $167 with many small‑denomination bills, and
- testimony of a hand‑to‑hand drug transaction in a high‑drug‑trafficking area.
Evidentiary sufficiency for intent to distribute. Both common sense and defense expert testimony supported treating:
- the gun and the cash pattern as probative of distribution,
- the large quantity and high purity of the methamphetamine as inconsistent with mere personal use.

On this record, the court concludes that the suppression of the sandwich bags would have been at most a modest evidentiary loss, not a “mortal blow” or “grave threat” to the prosecution’s case. In the language of Zakhari, it would not make the government’s job “much tougher” at trial.

By contrast:

In LaDeau, suppression left the government with no admissible evidence of child pornography—the core element of the offense.
In Zakhari, the suppressed confession was described as “especially compelling,” sitting at the heart of the government’s proof.

The implication is that the presumption of vindictiveness is reserved for cases where suppression targets core evidence—evidence that is indispensable or uniquely powerful—not merely cumulative or corroborative proof.

B. Step Two: Reasonableness and Government Explanations (Not Reached)

Because the panel finds no sufficient stake in the motion, it does not reach the second prong: whether the government’s decision to supersede was “unreasonable.”

Had the court reached this question, it would have considered the government’s asserted reasons:

receipt of the new purity report supporting a higher quantity threshold; and
the breakdown of plea negotiations, a context in which Bordenkircher and Goodwin recognize that prosecutors may legitimately exercise leverage by adjusting charges, provided probable cause exists.

Because the presumption never arises, the burden never shifts, and those justifications are not formally evaluated. But the court’s structure makes clear: no presumption, no burden shift. The defendant must satisfy both the “stake” and “unreasonableness” elements before the government need respond with on‑the‑record explanations.

C. Distinguishing Actual Vindictiveness

The panel notes that Mincy did not develop an actual vindictiveness theory. To pursue such a theory, he would have needed direct or strong circumstantial evidence that the prosecutor subjectively intended to punish him for filing the suppression motion—such as:

statements from the prosecutor threatening retaliation,
documents revealing punitive motive, or
other evidence showing that the superseding indictment served no purpose other than punishing his exercise of rights.

Absent such evidence, and with the presumption unavailable, the vindictive prosecution claim necessarily fails.

D. Ineffective Assistance: Why the Court Deferred

On the ineffective assistance issue, the panel’s reasoning is straightforward:

Ineffective assistance claims often hinge on off‑the‑record communications and strategy—especially in the plea context.
Mincy’s allegations involve:
- advice (or lack thereof) regarding the risk of a superseding indictment, and
- counsel’s conduct during plea negotiations.
The existing appellate record contains no evidence detailing:
- what offers were made,
- what advice was given about risks, or
- why counsel chose to litigate the suppression motion.

Given these gaps, the court invokes the general rule (from Massaro and Burrell) that such claims should be left to collateral review, where the parties can develop a full record via testimony and documentary evidence. The claim is therefore dismissed without prejudice, leaving Mincy free to pursue it by § 2255 motion.

VI. The Concurrence’s Proposal: Abolishing the Pretrial Presumption

A. Core Thesis

Judge Readler agrees that Mincy cannot show a sufficient government stake in his suppression motion and that this is enough to resolve the appeal. But he raises a broader question:

Can a prosecutor’s charging decisions ever trigger the presumption of vindictiveness in the pretrial context?

His answer is “no.” In his view, the presumption of vindictiveness should be confined to post‑trial scenarios (e.g., following a successful appeal or a new trial), where the risk of punitive retaliation is greater and the prosecutor’s charging choices are less likely to serve legitimate, forward‑looking purposes.

B. Plea Bargaining and Pretrial Fluidity

The concurrence emphasizes:

Plea bargaining dominates the criminal process; roughly 97% of federal felony or Class A misdemeanor convictions arise from guilty pleas.
Pretrial proceedings are characterized by continuous negotiation, disclosure, witness interviews, and evolving assessment of evidence.
During this period, prosecutors:
- retain broad discretion over what charges to bring and when,
- reasonably reassess charging decisions as new information emerges (like lab results) or plea postures change,
- may legitimately condition plea offers on waivers or concessions (e.g., not contesting certain evidence), consistent with Bordenkircher.

From this, Judge Readler concludes that treating ordinary pretrial charging adjustments as presumptively vindictive would:

unnecessarily handcuff prosecutors,
undermine the stability and functionality of plea bargaining, and
conflict with the “presumption of regularity” that attaches to prosecutorial decisions (Armstrong).

C. Alignment with Other Circuits

The concurrence notes that virtually every other circuit has declined to apply a presumption of vindictiveness to pretrial charging decisions, including when:

charges are added or enhanced after a plea offer is rejected, or
a superseding indictment is filed following pretrial motions (including motions to dismiss or to suppress).

He references a string of decisions from the First, Second, Third, Fourth, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits, presenting the Sixth Circuit’s earlier decisions in LaDeau and Zakhari as outliers in their willingness to extend the presumption to pretrial contexts.

D. Alternative Safeguards

According to the concurrence, abandoning the presumption in the pretrial setting would not leave defendants unprotected. He points to other doctrines:

Actual vindictiveness – still available when there is proof of true retaliatory motive.
Selective prosecution – barring prosecutions based on impermissible classifications, such as race or religion.
Voluntariness of pleas – ensuring that any guilty plea is knowing, intelligent, and voluntary.

In his view, these tools adequately safeguard due process without the distortive effects of importing a presumption of vindictiveness into routine pretrial practice.

E. Status of the Concurrence

It is important to stress that Judge Readler’s proposal is not binding law. The panel majority continues to apply the existing Sixth Circuit two‑step framework for pretrial vindictive prosecution claims (as shaped by LaDeau, Zakhari, and Howell). However, the concurrence is a significant indicator that:

at least some judges on the Sixth Circuit are skeptical of the current pretrial presumption doctrine, and
there may be pressure in future cases—potentially en banc—to narrow or even overrule LaDeau and related precedents.

VII. Potential Impact and Practical Implications

A. For Defendants and Defense Counsel

Mincy underscores several practical realities for criminal defendants in the Sixth Circuit:

High threshold for presumption of vindictiveness.
To obtain a presumption based on a pretrial motion to suppress, a defendant must show that the motion threatens:
- to remove indispensable evidence, or
- to significantly weaken the prosecution’s case (e.g., eliminating a confession or the only evidence of an element).
Attacking cumulative or ancillary evidence—even if helpful to the government’s narrative—will generally not suffice.
Upcharging after plea breakdown is not, by itself, suspicious.
Consistent with Bordenkircher, Goodwin, and O’Lear, the decision to supersede with higher charges or enhancements after failed plea negotiations is generally treated as part of legitimate plea bargaining, not as evidence of vindictiveness.
Ineffective assistance claims tied to plea advice require a developed record.
To challenge counsel’s performance in plea negotiations (e.g., failure to warn of superseding charges, misadvice on sentencing exposure), defendants should anticipate the need for a § 2255 proceeding, where they can:
- submit affidavits,
- present testimony from counsel, and
- develop evidence regarding offers, rejections, and advice given.
Strategic plea decisions remain high‑risk, high‑reward.
Defendants must carefully weigh:
- the benefits of litigating suppression motions that may significantly weaken the prosecution, against
- the risk that, if negotiations fail and suppression is denied, the prosecutor may file superseding charges supported by probable cause.
Mincy confirms that courts are reluctant to treat such prosecutorial responses as presumptively unconstitutional.

B. For Prosecutors

For prosecutors, Mincy offers both reassurance and caution:

Reassurance: When new evidence emerges (e.g., lab reports) or plea negotiations break down, prosecutors remain free to:
- seek superseding indictments,
- add or enhance charges, and
- pursue statutory enhancements,
so long as they have probable cause and are not acting with actual retaliatory intent.
Caution: In truly extreme cases—where a pretrial motion would devastate the prosecution’s case (as in LaDeau and Zakhari)—courts may still entertain a presumption of vindictiveness if the government dramatically escalates charges in response. Prosecutors should therefore:
- document legitimate reasons for charging changes (e.g., new evidence, resource allocations), and
- avoid statements that could be construed as punishment for exercising pretrial rights.

C. Doctrinal Trajectory in the Sixth Circuit

Mincy does not change the formal legal test for pretrial vindictive prosecution claims, but it sharpens its application:

The “government stake” requirement is now clearly tied to the centrality of the challenged evidence, not merely to the magnitude of the sentencing exposure resulting from upcharging.
The concurrence signals a potential doctrinal shift that may urge future panels—or the en banc court—to scale back or eliminate pretrial presumptions of vindictiveness altogether.

VIII. Key Concepts Explained in Accessible Terms

A. Superseding Indictment

A superseding indictment is simply a new indictment that replaces an earlier one. It can:

add new charges,
change factual allegations (e.g., drug quantity), or
refine or narrow existing counts.

It is generally permissible so long as:

a grand jury returns the superseding indictment,
the statute of limitations has not expired, and
the changes are supported by probable cause.

B. Vindictive Prosecution

“Vindictive prosecution” occurs when the government uses its charging power to punish a defendant for exercising a legal right—such as:

appealing a conviction,
requesting a jury trial,
filing a motion to suppress or dismiss.

A defendant can claim:

Actual vindictiveness – requiring proof of retaliatory motive, or
Presumed vindictiveness – where the circumstances strongly suggest retaliation, triggering a presumption unless the government credibly explains its actions.

C. “Government Stake” in a Motion

The “government stake” in a pretrial motion is a measure of how dangerous that motion is to the prosecution’s case. Courts ask:

Would granting the motion destroy the government’s ability to prove its case?
Would it remove critical evidence, like the only proof of an essential element or an especially persuasive confession?
Or would it merely eliminate supporting or corroborative evidence that the government could readily replace with other proof?

Only in the first category—where the motion poses a “mortal blow” or “grave threat”—is the government deemed to have a sufficient stake to support a presumption of vindictiveness.

D. Ineffective Assistance of Counsel and § 2255

To prove ineffective assistance, a defendant must show:

That counsel’s performance was unreasonably poor (e.g., giving obviously incorrect legal advice, failing to investigate critical evidence).
That this poor performance likely affected the outcome (e.g., the defendant would have gone to trial or accepted a plea if properly advised).

Because these questions often involve private conversations and strategic judgments not reflected in the trial record, they are typically litigated through a post‑conviction motion under 28 U.S.C. § 2255, which allows:

introduction of new evidence,
testimony from the defendant and counsel, and
findings by the district court after an evidentiary hearing.

IX. Conclusion

United States v. Mincy reinforces and refines the Sixth Circuit’s approach to claims of vindictive prosecution in the pretrial context. The majority opinion confirms that:

The presumption of vindictiveness is a narrow, exceptional doctrine.
To trigger it based on a motion to suppress, a defendant must show that the motion threatens core, indispensable evidence—not merely helpful, ancillary items like plastic baggies in a case already supported by drugs, cash, a gun, and eyewitness testimony of a sale.
Absent a sufficient government stake in the motion, courts will not presume retaliatory motive from subsequent upcharging.
Ineffective assistance claims intertwined with plea bargaining and pretrial strategy generally require a developed factual record and are better reserved for § 2255 proceedings.

The concurrence, meanwhile, signals a deeper tension within the circuit about the role and reach of the vindictive prosecution presumption in pretrial practice. By urging that the presumption should have no place in the pretrial—and especially plea‑bargaining—context, it aligns the Sixth Circuit with the dominant approach in other circuits and invites future panels or the en banc court to reconsider LaDeau and similar precedents.

Although unpublished, Mincy will likely be cited as persuasive authority in future Sixth Circuit litigation involving superseding indictments, pretrial motions to suppress, and the interplay between prosecutorial discretion and defendants’ constitutional rights. Its primary doctrinal legacy lies in clarifying that the “government stake” requirement is evidence‑centric: only when a defendant’s motion threatens to eviscerate or dramatically weaken the government’s ability to prove its case will courts consider presuming vindictiveness from subsequent charging escalations.

Ancillary Evidence and the “Government Stake” Requirement: United States v. Mincy and the Limits of Pretrial Vindictive Prosecution Claims