Case 9:23-cr-80101-AMC Document 487 Entered on FLSD Docket 04/26/2024 Page 1 of 12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 23-801010-CR-CANNON

UNITED STATES OF AMERICA,

v.

DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,

Defendants.
/

DEFENDANT WALTINE NAUTA’S REPLY IN SUPPORT OF

HIS MOTION TO DISMISS THE SUPERSEDING INDICTMENT FOR
SELECTIVE AND VINDICTIVE PROSECUTION
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At the very first meeting with government counsel, Mr. Nauta’s counsel was advised that
they, “wouldn’t want you to do anything to mess that up,” referring to the fact that Mr. Nauta’s
counsel had been recommended for a judicial appointment by President Biden. This in the context
of a demand that Mr. Woodward convey to his client – whom he had yet to meet in person – the
necessity of cooperating with the government against its investigation (and eventual prosecution)
of a former President of the United States for the first time in history. Despite this extraordinary
posture, the response of the Special Counsel’s Office (“SCO”) confounds and ignores legal
standards and factual bases for Mr. Nauta’s claims for which he requests dismissal based on
selective and vindictive prosecution. That said, Mr. Nauta acknowledges additional discovery is
necessary to fully assess his claim of vindictive, or in the alternative, selective prosecution. See
United States v. Bonilla, No. 07-20897-CR, 2010 U.S. Dist. LEXIS 164174, at *15 (S.D. Fla. May
20, 2010).
“Vindictiveness in this context means the desire to punish a person for exercising his
rights.” United States v. Barner, 441 F.3d 1310, 1315 (11th Cir. 2006) (citing United States v.
Goodwin, 457 U.S. 368, 372 (1982)). “Actual vindictiveness by showing ‘objectively that the
prosecutor’s charging decision was motivated by a desire to punish him. . . ’” United States v.
Davis, No. 8:14-cr-191-T-36TBM, 2015 U.S. Dist. LEXIS 13256, at *4 (M.D. Fla. Feb. 4, 2015)
(citing United States v. Goodwin, 457 U.S. 368, 384 (1982)). At the pre-trial stage, courts are
instructed to evaluate the “‘realistic likelihood of vindictiveness’ in a particular factual
situation . . . and to determine whether any facts make a presumption of vindictiveness proper.”
Barner, 441 F.3d at 1317 (cleaned up) (“[I]n a pre-trial situation, presumption of vindictiveness
not applicable and defendant must come forward with objective evidence of actual vindictiveness.”
Id. at 1317-18.). “A defendant can establish actual prosecutorial vindictiveness if he can show that
the government’s justification for a retaliatory action is pretextual.” United States v. Schneider,
853 F. App’x 463, 469 (11th Cir. 2021). “To establish prosecutorial vindictiveness, a defendant
must show, through objective evidence, that (1) the prosecutor acted with genuine animus toward
the defendant and (2) the defendant would not have been prosecuted but for that animus.” Bonilla,
2010 WL 11627259, at *5 (S.D. Fla. May 20, 2010) (cleaned up).
Alternatively, where a defendant lacks objective evidence in support of a vindictive
prosecution claim, a defendant may compel such responsive discovery if it “offer[s] sufficient
evidence to raise a reasonable doubt that the government acted properly in seeking the indictment"

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and that ‘[a] showing of a colorable claim that is essential to compel discovery.’” Bonilla, No. 07-
20897-CR, 2010 U.S. Dist. LEXIS 164174, at *15 (S.D. Fla. May 20, 2010) (cleaned up).
“In order to establish unconstitutional selective prosecution, the claimant must show [1]
that the prosecution has a discriminatory effect and [2] that it was motivated by a discriminatory
purpose.” United States v. Emmanuel, 2007 WL 9705934, at *2 (S.D. Fla. July 3, 2007) (cleaned
up). “The first prong, discriminatory effect, is demonstrated by a showing that similarly situated
individuals were not prosecuted for the same crime.” Id. (cleaned up). “[A] ‘similarly situated’
person for selective prosecution purposes as one who engaged in the same type of conduct, which
means that the comparator committed the same basic crime in substantially the same manner as
the defendant.” Smith, 231 F.3d at 810. “The second prong, discriminatory purpose, is
demonstrated by a showing that the decision to prosecute was invidious or in bad faith.”
Emmanuel, 2007 WL 9705934, at *2 (cleaned up). In the alternative, “[a] defendant may obtain
discovery in support of a selective prosecution claim where the defendant provides some evidence
tending to show the existence of the essential elements of the defense.” Williams, 684 F. App’x at
777 (cleaned up).
I. ARGUMENT

A. The Events Leading Up to Mr. Nauta’s Indictment Demonstrate Discriminatory

Purpose and Actual Vindictiveness

Objective evidence of the SCO’s actual vindictiveness is overwhelmingly present.

Moreover, and in the very least, there is evidence to raise reasonable doubt with respect to the
government’s conduct in seeking the indictment, such that Mr. Nauta establishes that he has a
“colorable claim that is essential to compel discovery.” Id.
i. There is Objective Evidence that the SCO Acted with Genuine Animus Toward
Mr. Nauta and His Counsel

Mr. Nauta has already raised the issue of the “attention grabbing development[s]” in this
matter involving defense counsel before the Court and others, including the District Court for the
District of Columbia. Defs.’ Mot. to Compel at 53 (Jan. 16, 2024) (ECF No. 262) (citing Mem.
Op., In re Press Application for Unsealing of In re Grand Jury Subpoena, No. 42-gj-67 (Nov. 29,
2023)). And the Court has previously addressed some of these issues surrounding defense counsel
– most notably in its Order requiring sealed written submissions regarding “allegations raised by
Stanley E. Woodward, counsel for Waltine Nauta, against Jay I Bratt, Counsel to the Special

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Prosecutor, concerning statements made by Mr. Bratt to Mr. Woodward regarding a judicial
application submitted by Mr. Woodward.” Order at 1 (Aug. 7, 2023) (ECF No. 101). Specifically,
the Order requested, “a complete and current account of the accuracy, substance, and status of the
reported allegations,” which was to include, “any pertinent written materials on the subject. . .”
Id. at 1-2. Accordingly, counsel provided a written brief to the Court in accordance with the Order,
in which it attached ten different exhibits (A through J) demonstrating misconduct of the SCO in
relation to the investigation of the instant matter. See Br. (Aug. 14, 2023) (ECF No. 118). The
exhibits substantively relating to the instant Motion are listed below with a summary of the content
pertinent to the instant Motion:
1. Exhibit A. Letter to Chief Justice Boasberg of the District of Columbia from Stanley E.
Woodward, Jr. dated June 7, 2023), detailing Mr. Woodward’s August 24, 2022 meeting
with Mr. Bratt in which Mr. Bratt suggested that Mr. Nauta’s cooperation with the
investigation would bear some effect on Mr. Woodward’s pending Presidential nomination
to the Superior Court for the District of Columbia. Id. at 3-4; see also id., Ex. A at 1-4 (ECF
No. 118-1)

2. Exhibits B. Defendants’ Amended Motion for Materials for Disclosure of Grand Jury
Materials, In re Grand Jury, No. 23-gj-10 (D.D.C. June 5, 2023) requesting that Chief
Justice Boasberg “order the disclosure of certain grand jury materials identified by counsel
as likely to reflect misconduct by the government before the grand jury.” Br. at 3 (Aug.
14, 2023) (ECF No. 118). Relevantly, this request for disclosure discussed Mr.
Woodward’s meeting with the government on August 24, 2022, in which Mr. Bratt
threatened Mr. Woodward’s judicial application in exchange for failure to precisely
comply with the investigation, in addition to Mr. Brett Reynold’s – another SCO prosecutor
– declination to reschedule grand jury appearances of Mr. Woodward’s clients after Mr.
Woodward explained the suffered a motor vehicle accident days before those witnesses
were schedule to testify. See Br. at Ex. B at 5-20 (Aug. 14, 2023) (ECF No. 118-1).

3. Exhibit C. Government’s Ex Parte, Sealed Opposition to Former President Trump’s

Motion to Disclosure Grand Jury Materials, In re Grand Jury Subpoenas, No. 23-gj-38
(D.D.C. June 15, 2023), in which the SCO described defense counsel claims as “not
credible.” Br. at 5 (Aug. 14, 2023) (ECF No. 118).

4. Exhibit J. Email correspondence dated October 14 – 18, 2022 between Mr. Woodward and
government counsel discussing conditions for an attorney proffer, to which no reply was
received. See Br. at Ex. J at 90-93 (Aug. 14, 2023) (ECF No. 118-1).

In addition to the foregoing, it is noteworthy that the government’s ex parte opposition to

the Defendants’ Amended Motion for Disclosure of Grand Jury Materials (In re Grand Jury, No.
23-gj-10 (D.D.C. June 5, 2023), “does not refute the additional details of the [August 24, 2022]
meeting recalled by defense counsel[,]” (Br. at 9 (Aug. 14, 2023) (ECF No. 118)); specifically, the

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same came just days after Mr. Woodward suffered an accident requiring his humerus to be
reconstructed (which occurred less than 24 hours before the birth of his child). Mr. Bratt and his
colleagues, however, were wholly indifferent to Mr. Woodward’s personal needs. Indeed, when
Mr. Woodward advised a colleague of Mr. Bratt’s that more time would be needed before another
client of Mr. Woodward’s could appear before the grand jury as a result of Mr. Woodward’s
accident and the birth of his child, Mr. Bratt’s colleague responded with words to the effect of,
“what excuse will you [Mr. Woodward] come up with next?”
Throughout Mr. Woodward’s interaction with Mr. Bratt and his colleagues, all of whom
would join the SCO, the SCO continued its investigation of Mr. Nauta while he continued to be
represented by Mr. Woodward. During this time, Mr. Woodward and the SCO continued
discussions with respect to Mr. Nauta’s role in the investigation, some of which continued to
emulate genuine animus toward Mr. Woodward and his representation of Mr. Nauta. For instance,
Mr. Woodward exchanged correspondence with the SCO to query whether the only manner
through which the SCO would consider an attorney proffer would be through a voluntary interview
by Mr. Nauta and indicated that if were, in fact, the case, that the “the posture within which [Mr.
Nauta] would be providing the department with information” would “significantly change[.]” See
Br. at Ex. J at 90-93 (Aug. 14, 2023) (ECF No. 118-1). Mr. Woodward did not receive a response
to this inquiry. See id.; see also Br. at 7, n. 9 (Aug. 14, 2023) (ECF No. 118). A similar in-person
conversation with a separate SCO attorney on May 23, 2023 occurred, during which it was
indicated that no opportunity for proffer would be considered unless Mr. Nauta fully complied
with the SCO’s investigation. See Mot. at 10 (Feb. 22, 2024).
Again, it bears noting that Mr. Woodward has requested the SCO transfer to this Court its
now-secret proceedings before the grand jury investigating the matter giving rise to the instant
indictment. Either, the treatment of Mr. Woodward by Mr. Bratt and his colleagues was unique to
Mr. Woodward such that the prosecution of Mr. Nauta can only be defined as vindictive, or such
treatment was pervasive throughout the investigation giving rise to the instant indictment and this
Court should have the opportunity to review those proceedings and decide whether the prosecution
of Mr. Nauta and his co-defendants was selective.

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lawful conduct. Id. at 1. Just as every other former president other than Former President Trump
has not been prosecuted, their former and current staff members, unlike Mr. Nauta, were also not
prosecuted. Id. at 1-13. The SCO, ignoring historical precedent, has nonetheless unlawfully and
unconstitutionally selected Mr. Nauta as a target for prosecution. A fair reading of the recently
released Hur Report 3 identifies other individuals, including but not limited to now President
Biden’s former and or current staff members and associates, who were at a minimum similarly
situated to, and or comparators of Mr. Nauta. Id. at 1-13. They, however, unlike Mr. Nauta, have
not been and will never be prosecuted. See Hur Report.
C. Mr. Nauta is Entitled to Discovery to Permit Him to Further Evaluate His Claims
of Selective and/or Vindictive Prosecution

The SCO argues that because the instant proceedings are in the pre-trial stages, there is no
presumption of vindictiveness at this juncture. Opp’n at 12 (Mar. 7, 2024). This Circuit, however,
has left open the question of whether a presumption of vindictiveness may apply in a pre-trial
setting. See Barner, 441 F.3d at 1318. Ultimately, courts have been instructed to contemplate the
“‘realistic likelihood of vindictiveness’ in a particular factual situation. . . and to determine whether
any facts make a presumption of vindictiveness proper.” Id. at 1317. Mr. Nauta, along with his
co-defendants, has previously requested the Court to compel the production of “all correspondence
and/or communications concerning counsel” with relation to the issues and events described supra
to further investigate any such claims for selective and/or vindictive prosecution. Mot. at 53-55
(Jan. 16, 2024) (ECF No. 262). The Defendants’ Motion to Compel was unresolved by the Court’s
deadline to file pretrial motions on February 22, 2024, and remains unresolved and without a
scheduled hearing as of the date of this Motion. See Order (Nov. 10, 2023) (ECF No. 215). As
such, in the absence of the necessary discovery in aid of claims of selective and/or vindictive
prosecution, in tandem with an effort to comply with the February 22, 2024 pretrial motions
deadline, Mr. Nauta had no other choice but to file his Motion with the facts currently in his
possession.
Nevertheless, even pending an order on the requests detailed in the Defendants’ Motion to
Compel, Mr. Nauta is in possession of facts to support, and, as earlier detailed, established that

3
See U.S. Dep’t of Justice Special Counsel’s Office, Report on the Investigation into Unauthorized Removal,
Retention, and Disclosure of Classified Documents Discovered at Locations Including the Penn Biden Center and the
Delaware Private Residence of President Joseph R. Biden, Jr. (Feb. 5, 2024) available at
https://www.justice.gov/storage/report-from-special-counsel-robert-k-hur-february-2024.pdf. (“Hur Report”).

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those facts demonstrate a realistic likelihood of vindictiveness exists in order to evaluate whether
a presumption of vindictiveness is proper here. Additionally, even if Mr. Nauta’s requests as listed
in the Defendants’ Motion to Compel are not fulfilled under that vehicle, the foregoing evidence
certainly raises reasonable doubt that the SCO acted properly in seeking his indictment and further
establishes a colorable claim such that discovery on the matter must be compelled. See Bonilla,
No. 07-20897-CR, 2010 U.S. Dist. LEXIS 164174, at *15 (S.D. Fla. May 20, 2010) (cleaned up).
CONCLUSION

For the foregoing reasons, the Court should dismiss the Indictment against Mr. Nauta for
the SCO’s selective and vindictive prosecution of him or, in the alternative, compel relevant
discovery to enable Mr. Nauta to appropriately address these claims.

[SIGNATURE NEXT PAGE]

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Date: March 24, 2024 Respectfully submitted,

s/ Stanley E. Woodward, Jr.

Stanley E. Woodward, Jr. (pro hac vice)
Brand Woodward Law, LP
400 Fifth Street NW, Suite 350
Washington, D.C. 20001
202.996.7447 (telephone)
202.996.0113 (facsimile)
[email protected]

s/ Sasha Dadan
Sasha Dadan, Esq. (Fla. Bar No. 109069)
Dadan Law Firm, PLLC
201 S. 2nd Street, Suite 202
Fort Pierce, Florida 34950
772.579.2771 (telephone)
772.264.5766 (facsimile)
[email protected]

Counsel for Defendant Waltine Nauta

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CERTIFICATE OF SERVICE

I hereby certify that on March 24, 2024, I electronically submitted the foregoing via

electronic mail, to counsel of record.

s/ Sasha Dadan