No Presumption of Vindictiveness from Speedy Trial Act Dismissal; Modus Operandi Joinder Upheld; Flight After Superseding Indictment Admissible

Case: United States v. Bryan Douglas Conley, No. 24-5775 (6th Cir. Nov. 12, 2025) (not recommended for publication)

Court: U.S. Court of Appeals for the Sixth Circuit

Panel: Kethledge, Larsen (author), and Bloomekatz, JJ.

Introduction

This appeal arises from a deceptive, multi-state exploitation scheme in which Bryan Douglas Conley used fake online identities to obtain sex and money from two women: a 17-year-old (A.Y.) and an adult (R.W.) with mental illness. The government prosecuted a suite of charges, including transportation of a minor for criminal sexual activity, kidnapping by inveigle and decoy, bank fraud, aggravated identity theft, and interstate threats. A jury convicted Conley on all counts; one count was later vacated as multiplicitous by the district court.

On appeal, Conley pressed four issues: (1) that adding a transportation-of-minors count after a Speedy Trial Act dismissal created a presumption of prosecutorial vindictiveness; (2) that the district court erred by refusing to sever the A.Y. count from the R.W.-related counts under Rules 8(a) and 14(a); (3) that the admission of flight evidence under Rule 404(b) was improper; and (4) that cumulative error warranted a new trial.

The Sixth Circuit affirmed across the board. The opinion clarifies three doctrinal points of recurring importance: (i) a Speedy Trial Act dismissal that necessitates reindictment, even close to trial, is a “garden-variety” pretrial event insufficient to trigger a presumption of prosecutorial vindictiveness; (ii) detailed, distinctive modus operandi across incidents can render charges “of the same or similar character” and support joinder across different victims and time periods; and (iii) flight evidence remains admissible when tied to a later “triggering event,” such as a superseding indictment, even if months have passed since the initial charge.

Summary of the Opinion

• Prosecutorial vindictiveness: No presumption applies where, after a Speedy Trial Act (STA) dismissal without prejudice, the government reindicted and added a transportation-of-minors count. The court distinguished rare pretrial contexts (e.g., when a suppression ruling eviscerates the case) that can create a realistic likelihood of vindictiveness.
• Joinder and severance: Joinder under Rule 8(a) was proper because the A.Y. and R.W. episodes shared an extensive, distinctive modus operandi. Severance under Rule 14(a) was properly denied because Conley showed no compelling prejudice, and much of the evidence would have been cross-admissible in separate trials under Rule 404(b).
• Flight evidence: The court upheld admission of flight evidence under Rule 404(b), applying the Dillon four-inference framework. The “triggering event” was the superseding indictment; Conley fled within two weeks of it.
• Cumulative error: With no individual error found, the cumulative error argument failed.

Analysis

Precedents Cited and How They Shaped the Outcome

Prosecutorial vindictiveness:

• United States v. Goodwin, 457 U.S. 368 (1982): The Supreme Court cautioned against presuming vindictiveness in the pretrial setting because charging decisions may evolve as the prosecutor learns more or reassesses existing information. The Sixth Circuit leaned on Goodwin to reaffirm prosecutorial latitude pretrial.
• United States v. LaDeau, 734 F.3d 561 (6th Cir. 2013) and United States v. Zakhari, 85 F.4th 367 (6th Cir. 2023): Both are rare Sixth Circuit cases applying a presumption in the pretrial context after successful suppression motions that posed a “grave threat” to the government’s case. They establish the “stake + unreasonableness” framework: a presumption can attach when the government has a substantial stake in deterring a defense right and reacts unreasonably.
• United States v. Moon, 513 F.3d 527 (6th Cir. 2008), United States v. Rosse, 716 F. App’x 453 (6th Cir. 2017), and United States v. Ewing, 38 F.3d 1217 (6th Cir. 1994) (unpublished): These decisions decline to presume vindictiveness where STA dismissals required reindictment, characterizing the defense motion as routine and not imposing the kind of prosecutorial “stake” that would realistically deter protected rights.

Joinder and severance:

• United States v. Deitz, 577 F.3d 672 (6th Cir. 2009): Misjoinder is reviewed de novo by reference to the indictment’s face, and joinder is favored in close cases.
• United States v. Rox, 692 F.2d 453 (6th Cir. 1982): Joinder is proper when offenses are of the same or similar character, even across different events.
• United States v. Abbott, 2025 WL 2237656 (6th Cir. Aug. 6, 2025): Supports joinder across separate incidents with different victims and locations when the offenses share sufficient similarity in character.
• United States v. Hang Le-Thy Tran, 433 F.3d 472 (6th Cir. 2006): Sets a high bar for severance; a defendant must demonstrate “compelling, specific, and actual prejudice.”
• United States v. Swift, 809 F.2d 320 (6th Cir. 1987) and United States v. Jacobs, 244 F.3d 503 (6th Cir. 2001): Courts presume juries follow limiting instructions, which mitigate spillover prejudice.
• United States v. Hamilton, 684 F.2d 380 (6th Cir. 1982): If evidence would be admissible in separate trials (e.g., for identity or modus operandi under Rule 404(b)), consolidation does not prejudice the defendant.
• United States v. Gallo, 763 F.2d 1504 (6th Cir. 1985): States the concept of “spillover prejudice” but does not treat it as a near-automatic ground for severance absent undue prejudice.

Flight evidence:

• United States v. Dillon, 870 F.2d 1125 (6th Cir. 1989): Provides the four-inference test for admissions by conduct through flight: behavior to flight; flight to consciousness of guilt; consciousness of guilt to consciousness of guilt for the charged crime; and that to actual guilt.
• United States v. Touchstone, 726 F.2d 1116 (6th Cir. 1984): Approves admission of flight evidence even long after initial charges if a later event could spark fear of prosecution in a guilty mind.
• United States v. Oliver, 397 F.3d 369 (6th Cir. 2005): Confirms flight can be an admission of guilt by conduct under Rule 404(b).
• United States v. Mandoka, 869 F.3d 448 (6th Cir. 2017); United States v. Allen, 619 F.3d 518 (6th Cir. 2010); United States v. Bell, 516 F.3d 432 (6th Cir. 2008); United States v. Clay, 677 F.3d 753 (6th Cir. 2012) (Kethledge, J., dissenting from denial of rehearing en banc): Acknowledge a lingering intra-circuit tension over the standard of review for Rule 404(b) rulings, which the panel found unnecessary to resolve here because there was no error under any standard.

Legal Reasoning

1) Prosecutorial vindictiveness (no presumption in these circumstances):

The Sixth Circuit framed the doctrine as requiring either proof of actual vindictiveness or a showing of a “realistic likelihood” of vindictiveness. Consistent with Goodwin, the court emphasized that pretrial charging decisions are fluid; prosecutors may uncover new information or reassess existing evidence, and exercising procedural rights often forces the government to redo work without implying retaliatory intent.

The panel anchored its analysis in Sixth Circuit precedent that treats Speedy Trial Act dismissals as routine pretrial occurrences, even if they require reindictment and repeated trial preparation. Unlike the rare situations in LaDeau and Zakhari—where successful suppression motions “eviscerated” the government’s case—the STA dismissal here did not pose a grave threat to the prosecution. It merely necessitated another trip to the grand jury and additional preparation. Thus, Conley failed to show the government had a sufficient “stake” in deterring his invocation of the Act or that the government acted unreasonably by adding a transportation-of-minors charge (§ 2423(a)) in the new indictment.

2) Joinder and severance (modus operandi justified joinder; no compelling prejudice shown):

On the face of the indictment, the court identified eleven striking similarities between the A.Y. and R.W. episodes, including: the use of PlentyofFish.com; the username “loveiseasy1198”; impersonation of a young, wealthy “De Beers” family member; inducements to meet; excuses for a mismatched appearance; offering to “drive to meet” the fictional online persona; drugging via a drink; offers of money for sex; multi-state travel; and exploitation for sex and money. Both victims were also particularly vulnerable (minor vs. cognitive impairment). These parallels rendered the offenses “of the same or similar character” under Rule 8(a) despite differences in victims, crimes, and timeframes.

For severance under Rule 14(a), the court held Conley to the Sixth Circuit’s stringent “compelling, specific, and actual prejudice” standard. His “spillover” concerns were mitigated by the presumption that juries heed limiting instructions (given here), and—critically—by the likely cross-admissibility of the other-acts evidence in separate trials for identity or modus operandi under Rule 404(b). Because the evidence landscape would look much the same even if the counts were separated, consolidation did not unfairly prejudice Conley.

3) Flight evidence (properly admitted under Rule 404(b) using Dillon):

Applying Dillon, the court endorsed all four inferences. The critical timing question centered on whether the five-month gap between the original indictment and Conley’s flight undermined probative value. The panel held it did not: what matters is the proximity to a “triggering event” likely to spark fear of prosecution. Here, Conley cut his ankle monitor and fled within two weeks of the superseding indictment, a textbook triggering event that, under Touchstone and Dillon, sustains the chain of inferences from flight to guilt. The court thus found the evidence probative and admissible for a non-propensity purpose—consciousness of guilt.

4) Cumulative error (no error, no accumulation):

With each individual ruling upheld, the cumulative error doctrine had no work to do. The court denied relief on that ground as well.

Impact and Implications

On prosecutorial vindictiveness challenges:

• The decision reinforces that Speedy Trial Act dismissals—without more—rarely create a realistic likelihood of vindictiveness when the government reindicts and adjusts charges. Defense claims must identify a government “stake” akin to the jeopardy posed by suppression rulings that gut the prosecution’s case.
• Prosecutors retain broad pretrial discretion to recalibrate charges after procedural resets. But LaDeau and Zakhari remain cautionary: escalating charges after a defense victory that severely undermines the case may still invite a presumption.

On joinder/severance in multi-victim exploitation cases:

• Detailed, distinctive modus operandi spanning platforms, personas, inducements, and methods of control can strongly support joinder under Rule 8(a), even when victims, statutory offenses, and dates differ.
• Severance arguments must grapple with cross-admissibility. If the other incident would qualify for Rule 404(b) identity/modus evidence in a separate trial, claims of “spillover prejudice” will be difficult to sustain—especially with tailored limiting instructions.

On flight evidence:

• The “triggering event” concept remains decisive. Defense counsel should address not only the absolute time from initial charge but the proximity to later events (e.g., a superseding indictment, an adverse pretrial ruling) likely to spur flight in a guilty mind.
• Where the chain of inferences under Dillon is robust, courts will admit such evidence for consciousness of guilt; Rule 403 balancing remains available but was not outcome-determinative here.

On standards of review for Rule 404(b):

• The panel acknowledged but did not resolve the Sixth Circuit’s intra-circuit tension over the standard of review for Rule 404(b) rulings. Practitioners should continue to brief both abuse-of-discretion and tripartite frameworks, but recognize that clear admissibility will usually be affirmed under any standard.

Complex Concepts Simplified

• Prosecutorial vindictiveness: A due process doctrine that prohibits punishing a defendant for exercising legal rights. It can be shown by proof of actual animus, or—rarely—by a presumption when circumstances suggest a realistic likelihood of retaliation. In the pretrial phase, courts are hesitant to presume vindictiveness because charging decisions are fluid and defendants routinely file motions that impose work on the government.
• Speedy Trial Act (STA) dismissal “without prejudice”: The case is dismissed but the government can refile. A “with prejudice” dismissal bars further prosecution. Here, the dismissal without prejudice allowed the government to reindict and add charges.
• Rule 8(a) joinder (“same or similar character”): Multiple offenses may be tried together if they share a similar nature, pattern, or signature. They need not involve the same victim or occur at the same time.
• Rule 14(a) severance: Even when joinder is proper, a court may sever if it would cause undue prejudice. The bar is high: the defendant must show actual, compelling prejudice that either compromises a specific trial right or prevents a reliable verdict. Limiting instructions often mitigate prejudice.
• Rule 404(b) other-acts evidence: Generally prohibits propensity uses (“once a wrongdoer, always a wrongdoer”) but allows other-acts to prove things like identity, plan, knowledge, or—here—consciousness of guilt via flight.
• Dillon four-inference test for flight: Courts assess: (1) Did the behavior amount to flight? (2) Does flight show consciousness of guilt? (3) Is that consciousness tied to the charged crimes? (4) Does that consciousness of guilt support actual guilt? The timing of the flight is measured from a “triggering event” that would cause fear of prosecution.
• Multiplicity: Charging the same offense in multiple counts. It risks multiple punishments for the same conduct; the remedy may be vacatur of a duplicative count, as occurred here with Count 1 after the government conceded multiplicity with Count 2.

Conclusion

United States v. Conley meaningfully consolidates Sixth Circuit doctrine in three recurring areas. First, prosecutorial vindictiveness claims premised on a Speedy Trial Act dismissal and reindictment will not trigger a presumption absent a grave prosecutorial “stake” and unreasonableness—conditions usually found only when a defense victory cripples the state’s case (e.g., suppression decisions like in LaDeau and Zakhari). Second, the court’s thorough focus on a detailed, distinctive modus operandi underscores that “same or similar character” joinder can apply across different victims, different crimes, and separate time periods, with severance denied where evidence would be cross-admissible and instructions can cabin prejudice. Third, the decision reaffirms that flight evidence is measured from a later event that could realistically trigger fear of prosecution, such as a superseding indictment; a gap from the initial charge is not disqualifying.

For investigators and prosecutors, Conley encourages thoughtful use of superseding indictments after procedural setbacks and supports joinder of multi-victim exploitation schemes that share a signature pattern. For defense counsel, the opinion signals that successful vindictiveness claims must demonstrate a substantial prosecutorial stake and unreasonable escalation, and that severance arguments must overcome both cross-admissibility and the presumption that juries follow limiting instructions. In sum, the Sixth Circuit affirms guilt while clarifying the contours of pretrial prosecutorial discretion, joinder doctrine, and the admissibility of consciousness-of-guilt evidence.