No Plea Deal

Damon Lawrence roanecounty.com

Convicted sex offender Kent Booher declined to take a plea deal in his federal case. He's now alleging that decision angered the feds and prompted them to file additional charges against him.

“The actions of the U.S. Attorney's Office were patently vindictive as a punishment for not accepting the Government's plea and asserting his constitutional right to a jury trial,” Booher's attorney, Russell T. Greene, wrote in a motion to dismiss.

Booher was indicted by a federal grand jury on Sept. 17, 2019, for enticement and felony sexual offense against a minor while on a sex offender registry. The feds weren't done there, however. On Nov. 19, 2019, which was less than a week before Booher was scheduled to stand trial, a superseding indictment was filed against Booher. He faced the two charges in the original indictment along with new charges of sex trafficking of a child, attempted production of child pornography and another count of enticement.

In the motion to dismiss, Booher is seeking dismissal of the three charges added in the superseding indictment, arguing it was retribution for refusing to take the government's plea deal.

“There is a reasonable likelihood that the government acted vindictively when it superseded the original indictment counts one week before trial with the more severe counts in the superseding indictment,” the motion to dismiss said.

Booher was an attorney with a law practice in Roane County before he got disbarred by the Tennessee Supreme Court. In 2013, he was indicted in Loudon County Criminal Court on three counts of aggravated statutory rape, one count of solicitation of a minor and one count of aggravated sexual exploitation of a minor. He later reached a deal with state prosecutors and pleaded guilty to two counts of statutory rape. The other charges were dismissed. He didn't go to prison, but he was put on the state sex offender registry and got disbarred.

“It is the opinion of Mr. Booher's first Counsel and present Counsel that the Government brought the first superseding indictment because they thought he didn't get as much time in State court as they, the Government, thought he should,” Booher's motion to dismiss said.

Booher was given a Nov. 25, 2019, trial date at his arraignment on the first indictment. He said he was prepared to go forward with the trial on that date, but the superseding indictment prompted his attorney at the time, Benjamin Sharp, to request a postponement. The request was granted.

Greene was appointed to represent Booher in January because Booher no longer wanted Sharp on the case.

“In this case, Mr. Booher can establish the presumption of vindictiveness since the Government replaced the original indictment with more severe counts of the first superseding indictment,” the motion to dismiss said. “The government avoid(ed) the November 2019 jury trial and added much more time and jeopardy for Mr. Booher going forward.”

U.S. District Judge Thomas Varlan is taking the matter seriously. He ordered the government to respond to Booher's motion to dismiss.

“The filing of additional charges does not establish prosecutorial vindictiveness, even where the additional charges follow unsuccessful plea negotiations,” Assistant U.S. Attorney Jennifer Kolman said in the government's response to the motion.

Kolman also said the charges added in the superseding indictment – sex trafficking of a child, attempted production of child pornography and enticement – are unrelated to the charges in the initial indictment.

“While it is true that the new charges added by the First Superseding Indictment involve the same victim as in the Loudon County case, the inclusion of the charges do not demonstrate vindictive prosecution,” the response said. “The charges added by the superseding indictment have elements that are different from those that were requires for the defendant's state convictions.”

The judge had yet to rule on Booher's motion as of press time Tuesday.