USA v. Long

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 23-03063-01-CR-S-BCW
)
KEVIN LONG, 	)
)
Defendant. 	)
REPORT AND RECOMMENDATIONS
Before the Court is Defendant’s Motion to Dismiss Count 3 and Disqualify the
Prosecuting AUSAs. 	(Doc. 97). 	This case has been referred to the undersigned to hear and
process all pretrial motions to dismiss the indictment. 	Pursuant to Rule 12(b)(3)(A)(iv) of the
Federal Rules of Criminal Procedure, Defendant moves to dismiss Count 3 as a vindictive
prosecution and disqualify the prosecuting attorneys for acting out of vindictiveness. 	In the
alternative, Defendant moves to disqualify the prosecuting attorneys, arguing they are witnesses.
The Government filed Suggestions in Opposition and Defendant filed a Reply in Support.
(Docs. 134, 144.) 	As follows, it is recommended that the relief requested by Defendant be
denied.
I. 	Findings
This case arises from the events surrounding the death of Jane Doe, a minor. On June 28,
2023, a grand jury returned an Indictment charging Defendant with two counts. 	(Doc. 1.) 	In
Count 1, Defendant was charged with the murder of Jane Doe at the Fort Leonard Wood United
States Army Military Installation on or about November 6, 2019, in violation of 18 U.S.C. §
1111. 	Id. 	In Count 2, Defendant was charged with making a false statement or representation
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about a matter within a federal agency’s jurisdiction in violation of 18 U.S.C. § 1001(a)(2). Id.
On July 6, 2023, Defendant was arraigned, and the case was set for trial on August 21, 2023.
(Docs. 13-14.)
On July 21, 2023, Defendant filed his first unopposed motion to continue the trial, stating
that additional time was needed “to obtain and review the discovery, conduct legal research,
conduct investigation, meet with the Defendant, and prepare for trial.” 	(Doc. 17.) 	On July 24,
2023, the Court granted the motion and continued the trial from August 21, 2023, to January 8,
2024, as requested by Defendant. (Doc. 18.)
On August 28, 2023, in response to a request for discovery, AUSA Ami Miller told
defense counsel Brian Risley that she would give him “the drives if you want to dump them. The
only thing I would not copy [is] your client’s phone dumps as there are nude images of [the
victim] including close-ups of her vagina.” (Doc. 97 at 10, doc. 134 at 2.) Over the next year,
the Government provided extensive discovery to defense counsel, including the single image at
issue in Count 3 approximately 55 times in various formats. (Doc. 97 at 10.) The single image
was disclosed with a Bates-stamped identifier and was also included on the discovery index as
“Photos of Injuries of [Jane Doe], provided by Long, 12 Nov 19.” Id.
On November 20, 2023, Defendant filed his second unopposed motion to continue the
trial, stating that additional time was needed to review the “extensive” discovery and prepare for
trial. (Doc. 25.) On November 21, 2023, the Court granted the second motion and continued the
trial from January 8, 2024, to July 8, 2024, as requested by Defendant. (Doc. 26.)
On April 29, 2024, Defendant filed an unopposed motion to declare the case complex and
to continue the trial. 	(Doc. 28.) 	In support, Defendant stated that the case is unusual and
complex due to the “voluminous discovery,” and additional time was needed “to organize,
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review, and analyze the government’s discovery in order to effectively prepare for trial.
Additionally, travel to interview potential witnesses may be necessary. Further, additional time is
needed to conduct a thorough investigation and to retain and consult with necessary experts on
critical medical and scientific matters.” Id. at 2-3. On April 30, 2024, the Court entered an order
declaring the case “unusual or complex” under the Speedy Trial Act and continuing the trial a
third time, from July 8, 2024, to April 28, 2025, as requested by Defendant. (Doc. 29.)
In July 2024, the Government threatened to add a child sexual abuse material/child
pornography charge if Defendant did not plead guilty. (Doc. 144 at 10.) On July 15, 2024, Mr.
Risley emailed AUSA Miller to ask if he could come to the Government’s office to inspect the
alleged evidence in support of the child sexual abuse material/child pornography charge. (Doc.
144 at 8.)
On March 12, 2025, Defendant offered to resolve the case through a plea to involuntary
manslaughter. 	(Doc. 144 at 11.) 	On March 17, 2025, AUSA Miller emailed to Mr. Risley the
following: “Thank you for speaking to me about Mr. Long today. Just to make sure we are on the
same page, if you are moving to continue, we will not supersede to add the sexual exploitation
charge [and] if you are not moving to continue, I anticipate that a superseding indictment will be
forthcoming in the early part of April.” Id. (citing doc. 134-6 at 2.) The March 17, 2025, email
continued with a discussion of plea conditions acceptable to the Government.
On March 20, 2025, Defendant filed a fourth motion to continue the trial from April 28,
2025, to September 15, 2025. (Doc. 48.) Defendant stated that additional time was needed “for
the parties to engage in meaningful and substantive discussions on whether resolution short of
trial is possible.” Id. at 2. On March 25, 2025, the Court granted the motion and continued the
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trial from April 28, 2025, to September 15, 2025, as requested by Defendant. 	(Doc. 49.) 	On
April 10, 2025, Defendant filed a Motion to Review and Amend Detention. (Doc. 52.)
On July 3, 2025, AUSA Miller sent an email to defense counsel rejecting Defendant’s
offer to resolve the case through a plea to involuntary manslaughter. (Doc. 144 at 11, doc. 134-7
at 1.) 	AUSA Miller further stated in this email that if Defendant did not withdraw the pending
Motion to Review and Amend Detention, then the Government would “move forward with
charges this month” and ask the court to reopen the Motion to Review and Amend Detention to
allow it to present the additional evidence related to the new charges. Id.
On August 26, 2025, by Superseding Indictment, a grand jury indicted Defendant with
the original two counts and two new counts. (Doc. 84.) At issue is the newly charged Count 3,
as follows:
Beginning on an unknown date, but as early as October 30, 2019, said dates being
approximate, 	in 	Pulaski 	County, 	in 	the 	Western 	District 	of 	Missouri, 	the
defendant, KEVIN LONG, employed, used, persuaded, induced, and enticed, a
minor, Jane Doe, to engage in sexually explicit conduct for the purpose of
producing a visual depicting of such conduct, which visual depiction was
produced using materials that had been mailed, shipped, and transported in
interstate and foreign commerce, all in violation of Title 18, United States Code,
Sections 2251(a) and 2251(e).
Id. 	On August 28, 2025, Defendant was arraigned on the Superseding Indictment. 	(Doc. 86.)
On August 29, 2025, the undersigned entered an order denying Defendant’s Motion to Review
and Amend Detention. (Doc. 89.) On September 8, 2025, the case was reset for trial on October
20, 2025. (Doc. 91.) On September 15, 2025, Defendant filed the motion at issue.
On September 19, 2025, Defendant filed a fifth motion to continue the four-to-five-week
trial from October 20, 2025, to a special setting on February 9, 2026. 	(Doc. 100.) 	Defendant
stated that the February 9, 2026, date was selected based on “the availability of the parties’
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experts, of which there are at least nine.” 	Id. 	On September 22, 2025, the Court granted the
motion and continued the trial to February 9, 2026, as requested by Defendant. (Doc. 102.)
II. 	Conclusions
a. 	Vindictive prosecution
Federal Rule of Criminal Procedure 12(b)(3)(A)(iv) allows a defendant to file a pretrial
motion to dismiss an indictment for “selective or vindictive prosecution.” 	Although the
government may punish a defendant for criminal conduct, it may not do so in retaliation for a
defendant’s exercise of valid legal rights, as this violates the Due Process Clause. United States
v. Goodwin, 457 U.S. 368, 372 (1982); United States v. Williams, 793 F.3d 957, 963 (8th Cir.
2015); United States v. Campbell, 410 F.3d 456, 461 (8th Cir. 2005). To establish prosecutorial
vindictiveness, a defendant must show (1) actual vindictiveness, or, in rare instances, may rely
upon (2) a presumption of vindictiveness. Campbell, 410 F.3d at 461. 	Actual vindictiveness
requires objective evidence that the prosecutor’s decision was intended to punish the defendant
for exercising a legal right. 	Williams, 793 F.3d at 963. 	A presumption of vindictiveness is
established by evidence showing a realistic likelihood of vindictiveness considering “the
prosecutor’s actions in the context of the entire proceedings.” Williams, 793 F.3d at 963 (citing
United States v. Chappell, 779 F.3d 872, 880 (8th Cir. 2015)). “The defendant bears the heavy
burden to show that the prosecution was vindictive, in light of the discretion prosecutors are
given in performing their duties.” United States v. Robinson, 809 F.3d 991, 1000 (8th Cir. 2016)
“In the absence of clear evidence to the contrary, courts presume that prosecutors have properly
discharged their official duties.” Chappell, 779 F.3d at 880 (quoting United States v. Armstrong,
517 U.S. 456, 464 (1996)).
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Here, Defendant argues “the prosecutors added Count 3 out of vindictiveness,” claiming
they “do not have a good faith belief that [Defendant] actually committed the act charged in
Count 3.” (Doc. 97 at 5.) According to Defendant, the Government added Count 3 in retaliation
after “realizing that [he] planned to fight the murder charge at trial.” Id. at 10. As Defendant has
not produced or alleged any direct evidence of vindictiveness, he attempts to rely on a
presumption of vindictiveness. 	As follows, however, Defendant has not shown a reasonable
likelihood of vindictiveness and as a result, the rare instance of a presumption of vindictiveness
does not apply.
Defendant claims the historical context of the case demonstrates the Government’s
vindictiveness. First, he argues the new charge is not the result of new information as it is based
on information the Government has had since 2019. Defendant cites Chappell, 779 F.3d at 881,
and United States v. Wood, 36 F.3d 945, 947 (10th Cir. 1994), for the premise that a lack of
changed circumstances can be evidence of vindictiveness. However, unlike in the present case,
where the charging decision was made pre-trial, in both Chappell and Wood, the prosecutor
decided to pursue additional charges on remand after a trial and appeal. See Wood, 36 F.3d at
946 (citing Goodwin, 457 U.S. at 381) (“A change in a charging decision made after an initial
trial, as was the charging decision in this case, is much more likely to be improperly motivated
than is a pre-trial decision.”).
Furthermore, nearly fifty years ago, the Supreme Court held that a prosecutor may
legitimately threaten to bring additional charges to induce a defendant into pleading guilty, even
though the additional charges, if brought, might appear to penalize a defendant for exercising
their right to trial. 	Bordenkircher v. Hayes, 434 U.S. 357, 363–65 (1978). 	Because plea
bargaining offers a “mutuality of advantage to defendants and prosecutors,” id. at 363, and
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because a prosecutor’s ability to threaten a reluctant defendant with additional charges is a
necessary feature of a robust plea bargaining process, additional charges resulting from a
breakdown of the plea bargaining process are not deemed vindictive, regardless of the fact that
the prosecutor’s goal is “to persuade the defendant to forgo his constitutional right to stand trial.”
Goodwin, 457 U.S. 368, 378; see id. at 378 n. 10.
Here, an additional charge was brought against Defendant after the breakdown of plea
negotiations and before trial, a legitimate, non-vindictive act, as follows.
• 	On June 28, 2023, a grand jury returned the original indictment,
• 	During the next year, Defendant reviewed the discovery and conducted research
and investigation as stated in his first three motions for continuance,
• 	In 	July 	2024, 	the 	Government 	threatened 	to 	add 	a 	child 	sexual 	abuse
material/child pornography charge if Defendant did not plead guilty,
• 	On March 12, 2025, Defendant offered to resolve the case through a plea to
involuntary manslaughter,
• 	On March 20, 2025, Defendant filed a fourth motion to continue the trial to allow
“the parties to engage in meaningful and substantive discussions on whether
resolution short of trial is possible,”
• 	On July 3, 2025, the Government rejected Defendant’s offer to resolve the case
through a plea to involuntary manslaughter, and
• 	On August 26, 2025, a grand jury returned the superseding indictment, adding the
child pornography charge.
Defendant “does not dispute that the Government has been threatening to bring such a charge
since mid-2023” and agrees that “the Government repeatedly threatened to supersede with Count
3 – as early as mid-2024.” (Doc. 144 at 4, 11.)
Defendant’s citation to United States v. LaDeau, 734 F.3d 561 (6th Cir. 2013) is also
unavailing. In LeDeau, the prosecutor brought an additional charge after the defendant’s motion
to suppress was granted and the original charge was dismissed. Id. at 568. This scenario is not
what happened in the present case, where the additional charge was brought after plea
negotiations broke down. 	Under these circumstances, the fact that the new charge is based on
information the Government has had since 2019 does not show a reasonable likelihood of
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vindictiveness. See Goodwin, 457 U.S. at 381 (when the initial charging decision is made, “the
prosecutor’s assessment of the proper extent of prosecution may not have crystallized.”).
Second, 	Defendant 	argues 	the 	timing 	of 	the 	Superseding 	Indictment 	indicates
vindictiveness. (Doc. 97 at 15.) Although it is true that the Superseding Indictment was returned
less than three weeks before trial was set to begin, “timing alone is insufficient to trigger the
presumption of vindictiveness.” Williams, 793 F.3d at 965. And Defendant’s citation to United
States v. Jenkins, 504 F.3d 694 (9th Cir. 2007) is not helpful. 	In Jenkins, the Government
brought an additional charge during trial while the jury was deliberating and after the defendant
presented a reasonable credible defense to the charge being tried. 	Id. at 700. 	Here, the
Government warned Defendant in July 2024 that failure to reach a plea agreement would result
in a superseding charge, then followed through on that threat after plea negotiations broke down
in July 2025, which is a legitimate, non-vindictive part of plea-bargaining under Bordenkircher
and Goodwin. 	Accordingly, the timing, while close to trial, does not support the finding of a
reasonable likelihood of vindictiveness.
Third, Defendant contends “the sexual exploitation charge is based on weak evidence at
best.” (Doc. 97 at 16.) In support, he purports that he “alerted investigators to the image at issue
and voluntarily provided it to investigators” and the “investigators did not consider the image to
be child sexual abuse material and did not treat it as such.” 	Id. at 7-8. Defendant also claims the
Government has provided no evidence the image was lascivious or intended to elicit a sexual
response in the viewer. 	However, Defendant proceeds pursuant to Rule 12(b)(3)(A)(iv), which
allows pretrial motions “if the motion can be determined without a trial on the merits.” 	See
United States v. Nabors, 45 F.3d 238, 240 (8th Cir. 1995) (There is no summary judgment
procedure in criminal cases, nor do the rules provide for a pre-trial determination of the
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sufficiency of the evidence). 	Defendant’s assertions regarding his actions and the actions of
investigators in 2019 may be relevant to his defense to the charge at trial, but they are not
relevant to Defendant’s primary argument that the prosecutors do not have a good faith belief
that he committed the act charged in Count 3. 	Nor is the Government required to explain their
theory of the case to Defendant before trial. Id. Accordingly, the undersigned will not consider
these allegations, as they are matters for trial.
In further support of his contention that the sexual exploitation charge is based on weak
evidence at best, Defendant alleges that the prosecutors did not present the image at issue to the
grand jury or mention it during the original arraignment, then disclosed the image at issue 55
times to defense counsel during discovery but did not claw back the image promptly after they
were informed. 	Even accepting these allegations as true, when viewing the full context of the
case, Defendant’s contention that the charge is based on weak evidence is belied by other
uncontroverted actions of the prosecutors. 	Specifically, “the Government repeatedly threatened
to supersede with Count 3 – as early as mid-2024.” 	(Doc. 144 at 11.) 	Then, after plea
negotiations broke down in July 2025, the Government did what it had threatened to do: it
presented the matter to a grand jury, which found probable cause and indicted Defendant on
Count 3. See Branzburg v. Hayes, 408 U.S. 665, 686-687 (1972) (“ancient role of the grand jury
is that it has the dual function of determining if there is probable cause to believe that a crime has
been 	committed 	and 	of 	protecting 	citizens 	from 	unfounded 	criminal 	prosecutions”).
Accordingly, upon review of the full context of the case, Defendant’s contention that the sexual
exploitation charge is based on weak evidence is unfounded.
Fourth, Defendant maintains the new charge is not a more severe charge, but instead is
brought to “scare, embarrass, stigmatize, and shame him.” 	(Doc. 97 at 18.) 	He argues that he
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was already charged with first-degree murder in Count 1, and if convicted of that charge he will
be sentenced to life imprisonment without the possibility of release. 	Thus, he asserts that a
conviction under Count 3 would not actually add any time to his sentence. 	In response, the
Government argues that if Defendant is convicted of first-degree murder, he may seek an
instruction on the lesser-included offense of involuntary manslaughter, which provides a
maximum sentence of 8 years. 	As a result, Count 3, which carries a range of 15-to-30-years
imprisonment, 	may 	ultimately 	be 	a 	more 	severe 	charge 	than 	Count 	1. 	Under 	these
circumstances, the undersigned does not find that this factor supports a reasonable likelihood of
vindictiveness.
In summary, Defendant has not met his heavy burden of showing clear evidence that a
reasonable likelihood of vindictiveness exists sufficient to invoke a presumption. 	Defendant
argues that the absence of newly discovered evidence, the timing of the new charge, the
allegedly weak supporting evidence, and the lesser penalty of the new charge demonstrate that
the prosecutors do not believe Defendant committed an offense related to child pornography.
However, when considering the full record, primarily the uncontroverted facts that at least one
year before plea negotiations ended unsuccessfully, the Government advised that it would bring
the additional charge if Defendant did not plead guilty and that the grand jury found probable
cause and indicted him, Defendant has failed to show that the prosecutors “do not have a good
faith belief that [he] actually committed the act charged in Count 3.” 	See Bordenkircher, 434
U.S. at 363–64 (So long as probable cause supports the charges and there is no evidence of
retaliation, the government may escalate charges following a rejected plea offer). 	As a result,
there is no due process violation and Defendant’s motion to dismiss for vindictive prosecution
should be denied.
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Additionally, 	because 	Defendant 	has 	failed 	to 	demonstrate 	any 	prosecutorial
vindictiveness, his request to disqualify the prosecutors for acting out of vindictiveness should
also be denied.
Defendant also requests discovery and an evidentiary hearing on the Government’s
prosecutorial decision making, arguing “these materials are likely to confirm the vindictiveness
of the prosecution and the Government’s lack of objectivity and good faith.” 	(Doc. 97 at 22.)
To merit further discovery or an evidentiary hearing on a vindictive prosecution claim, a
defendant must allege sufficient facts to take the question past the frivolous state and raise
reasonable doubt as to the prosecutor’s purpose. United States v. Aanerud, 893 F.2d 956, 960-61
(8th Cir. 1990). 	By failing to show a reasonable likelihood of vindictiveness exists, Defendant
has failed to make a threshold showing of a vindictive prosecution claim. 	Therefore, the
undersigned declines to grant Defendant’s requests for discovery and an evidentiary hearing.
b. 	Disqualification of prosecutors as interested witnesses
In the alternative, Defendant argues that if Count 3 survives, then “the prosecutors must
be disqualified from trying this case as they are necessary witnesses to [his] defense of Count 3.”
(Doc. 97 at 20.) 	Defendant relies on the advocate-witness rule, which “prohibits an attorney
from appearing as both a witness and an advocate in the same litigation.” 	United States v.
Prantil, 764 F.2d 548, 552-53 (9th Cir. 1985). He claims the prosecutors’ “cavalier treatment of
the purported evidence proves it is not child sexual abuse material.” 	(Doc. 97 at 20.) 	Thus,
according to Defendant, he needs their testimony as to how they characterized, maintained, and
distributed the image at issue to defense counsel.
“[A] trial court has wide discretion respecting examination of witnesses ... [and] may,
without abusing its discretion, refuse to allow the defense to call as a witness the United States
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Attorney trying the case.” 	Gajewski v. United States, 321 F.2d 261, 268 (8th Cir. 1963).
Requests for such testimony are disfavored, and “the party seeking such testimony must
demonstrate that the evidence is vital to his case, and that his inability to present the same or
similar facts from another source creates a compelling need for the testimony.” United States v.
Watson, 952 F.2d 982, 986 (8th Cir.1991) (citing Gajewski, 321 F.2d at 269; Prantil, 764 F.2d at
551).
Here, the prosecutors’ testimony is not vital evidence. Unlike in Prantil, neither AUSA
Miller nor AUSA Eggert are witnesses to or participants in any of the events alleged in Count 3.
Notably, Defendant claims the Government “has provided no evidence that the image was
lascivious or intended to elicit a sexual response in the viewer [and] there is no circumstantial
evidence in the thousands of pages of discovery that supports the image being more than mere
nudity.” (Doc. 97 at 17.) Under these circumstances, the prosecutors’ handling of the image at
issue does not appear to be vital to a jury’s determination as to whether the image depicts
sexually explicit conduct.
Nor will Defendant be unable to present similar facts regarding the Government’s
allegedly cavalier treatment of the evidence. 	As Defendant himself states, he will be able to
elicit “testimony from Agent Diemler and others who investigated the case about their
investigation” at trial. (Doc. 144 at 12.) Thus, Defendant will be able to present similar facts as
to the handling of the evidence from another source.
Accordingly, the motion to disqualify the prosecutors as interested witnesses should be
denied.
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III. 	Recommendations
Based on the foregoing, the relief requested by Defendant in his Motion to Dismiss Count
3 and Disqualify the Prosecuting AUSAs should be denied.
/s/ David P. Rush
DAVID P. RUSH
UNITED STATES MAGISTRATE JUDGE
DATE: December 12, 2025
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