United States v. Willis Kendrick, III, 682 F.3d 974

Kendrick was indicted in December 2010 for alien smuggling for commercial gain under 8 U.S.C. § 1324(a)(2)(B)(ii).
Earlier in 2010 Kendrick was acquitted on marijuana trafficking, firearm offenses arising from the same May 28–29, 2010 incident.
During the first trial Kendrick admitted he intended to smuggle three illegal aliens for $25,000 but later claimed the money was for legal aliens; his testimony was inconsistent under cross-examination.
The government sought to bring the alien-smuggling charge based in part on Kendrick’s prior sworn testimony; Kendrick moved to dismiss the indictment citing vindictive prosecution.
The district court granted the government’s in limine motion to bar discussion of the prior trial, and Kendrick sought to introduce excerpts from the prosecutor’s closing in the prior trial as party-opponent evidence, which the court denied.
Kendrick was convicted at the alien-smuggling trial; on appeal he challenges the vindictive-prosecution ruling, sufficiency of the evidence, and the in limine rulings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Presumption of vindictiveness after acquittal	Kendrick asserts vindictive prosecution after acquittal warrants dismissal.	Government argues no presumption; evidence shows independent acts and no retaliatory motive.	No presumption; no actual vindictiveness shown; district court did not abuse discretion.
Sufficiency of the evidence for alien smuggling	Evidentiary record insufficient to prove knowledge and intent to smuggle for profit.	Evidence viewed in light favorable to government supports guilt beyond reasonable doubt.	Sufficient evidence supported guilt; rational juror could find all elements proven.
Admission of prior-trial events via in limine ruling	Defense needed to discuss prior trial to provide full context for credibility.	District court properly limited prior-trial references to avoid prejudice and confusion.	Ruling within discretion; no abuse; prior acquittals were inadmissible hearsay and potentially prejudicial.
Prosecutor's closing argument as party-opponent admissions	Prosecutor’s closing from prior trial should be admissible as party-opponent admission.	Counsel’s closing arguments are not evidence; admissions must be testimonial statements.	Not admissible as evidence; even if considered, admissibility would be limited and not reversible error.

United States v. Barner, 441 F.3d 1310 (11th Cir. 2006) (presumption of vindictiveness after heightened charges requires rebuttal by defendant)
United States v. Spence, 719 F.2d 358 (3d Cir. 1983) (vindictiveness depends on retaliation for protected rights)
United States v. Jones, 601 F.3d 1247 (11th Cir. 2010) (presumption rebutted where charges arise from independent acts)
United States v. Esposito, 968 F.2d 300 (3d Cir. 1992) (acquittal does not by itself create presumption of vindictiveness)
United States v. Rodgers, 18 F.3d 1425 (8th Cir. 1994) (acquittal followed by new charges does not imply vindictiveness)
United States v. Wall, 37 F.3d 1443 (10th Cir. 1994) (acquittal cannot alone establish vindictiveness)
United States v. Johnson, 171 F.3d 139 (2d Cir. 1999) (acquittal after trial does not automatically imply vindictiveness)
United States v. Gari, 572 F.3d 1352 (11th Cir. 2009) (sufficiency standard: review in light most favorable to government)
United States v. Quinn, 123 F.3d 1415 (11th Cir. 1997) (harms from misapplication of evidentiary rules and prejudice)
United States v. DeLoach, 34 F.3d 1001 (11th Cir. 1994) (admissibility of attorney's closing arguments as party-opponent admissions)
United States v. Lopez, 590 F.3d 1238 (11th Cir. 2009) (lawyer statements are not evidence; jury instruction cautions)