*1 1360 validly Brantley we hold Mrs. Fair claim the Public School to her
available privacy right-liber is her 37-9-59, raised in this suit Act, Ann. Miss.Code §§ Dismissal discharged because claim that she Although ty the district (1974). 37-9-101-113 school, and private attendance at Mrs. her son’s stating was correct court discharged otherwise. not have been commence a would properly could not Brantley claim, court deci Mississippi until As to this 37-9-59 court action under § state jurisdictional based on primarily sions were administrative she had exhausted her state in each case namely, grounds, has held that remedies, Supreme jurisdiction. no original court had chancery of available state adminis the exhaustion circumstance, Mississippi apparently In such prerequisite trative remedies is not to alterna effect give preclusive court does not commencement of an action federal City of on the merits. tive determinations Regents v. Bd. of Patsy under 1983. § Hills, Inc., 172 496, 102 So.2d Florida, Jackson Creston State (Second) (Miss.1965). Restatement See (1982): (last e sen Judgments Comment § Congress The 1871 intended [§ 1983] Therefore, 173. tence) and Illustration 4 at of the United open throw the doors as to this claim. judicata res is not available to individuals who were States courts presented by points As to each of the other with, suffered, or who had threatened holdings fully I concur appeal, ... deprivation rights of constitutional majority. reasoning immedi- provide and to these individuals courts notwith- ate access to federal law to the
standing any provision of state
contrary. [quotation
Id. at 2562 omitted].
3. Res Judicata America, UNITED STATES ju held that res district court Plaintiff-Appellant, action,
dicata Brantley’s barred Mrs. § based on the Mississippi Court’s finding that she had lost on the merits in KREZDORN, Herman V. her second state court action under 37-9- § Defendant-Appellee. agree. judicata 59. We do not Res does No. 81-1404. apply action assert because § ed involves the determination of facts and United Appeals, States Court of issues posed which are distinct from those Fifth Circuit. in the state litigation. The constitu Nov. 1983. tionally protected interests at stake do not arise from a property right state-created 27, 1984. Certiorari Denied Feb. but, rather, pri emanate from the familial See vacy right to control the path educational of one’s children.
REVERSED and REMANDED.
GARWOOD, Judge, concurring: Circuit
Respecting judicata the res under point, give U.S.C. 1738 we Missis- prior §
sippi judgments only preclusive such effect Jam,
as Mississippi would. Southern See Robinson, 94, 97, (5th
Inc. v. 675 F.2d Co.,
Cir.1982); Quaker Hicks v. Oats (5th Cir.1982).
F.2d *2 Krezdorn, (5th Cir. F.2d 1327
States erred 1981). We held the district thirty-two addi admitting evidence of applica border-crossing card forged tional but Krezdorn allegedly prepared by tions Proof of the in the indictment. charged *3 inadmissible forgeries was ruled uncharged was not 404(b). planA under Fed.R.Evid. There charged. the offense an element of Powell, Asst. Murphy, Sidney E. John in the fore, were included forgeries the not Antonio, Tex., Attys., plaintiff-ap- for San general to the exception or scheme” “plan pellant. “other of a rule that evidence defendant’s Pass, Knickerbocker, Eagle Verne F. at 1331. 639 F.2d crimes” is inadmissible. Tex., Austin, Tex., Knisely, Paul E. for de- However, our opinion dicta in observed fendant-appellee. plan directly be existence would “[t]he in, instance, conspiracy for issue Id. at 1331 n. 7.
charge.” remand, was reindicted Upon Krezdorn previ- counts he had on the four which CLARK, BROWN, Judge, Before Chief was also ously been convicted. Krezdorn GEE, REAVLEY, GOLDBERG, RUBIN, conspiracy forge immigra- indicted for POLITZ, RANDALL, TATE, JOHNSON, tion documents violation of U.S.C. GARWOOD, JOLLY and HIGGINBOT superseding indictment § HAM, Judges Circuit *. Ar- that Krezdorn with charged conspired CLARK, Judge: Chief the on forge signatures nulfo Contreras family. sold to the Ruiz five cards case prima A facie vin- of the counts were forgeries in substantive arising dictiveness of the addi- proof the furtherance charged to be overt acts in charge following tion of a on remand conspiracy conspiracy. the The new successful that suggested the added by imprison- increased five charge years curing as a method of the error $10,000 pen- potential ment and fines the found show- rebutted a factual four that could be under the alties assessed ing findings of no vindictiveness. Despite counts. original of fact indicating did vindictively, not act dis- the district court dis- hearing, an Following evidentiary the added charge. missed We reverse that granted trict court Krezdorn’s motion dismissal remand proceed- for further The court dismissed the count. conspiracy ings. following fact: findings made the involved prosecutors Because two were
I times, in the case at it is unclear various original In the posses- indictment in this exactly what evidence was in cause, Herman V. charged Krezdorn was of the at the time government sion separate five forg substantive counts with original indictment was returned. inspector’s Nevertheless, govern- another on Mexi signature it is clear that border-crossing can Arnulfo applications card knew of the ment involvement five members of the origi- Ruiz The dis family. prior to the return of Contreras trict court directed an on one decided acquittal government nal indictment. count and jury originally, convicted Krezdorn on to indict because not Contreras remaining citizen; four consequently, counts. This court re a Mexican he was versed Krezdorn’s never be convictions. United knew he could government * Judge participate Jerre S. Williams recused himself and did in this not decision. and, indicted, if simply
extradicted
would
II
up
clutter
as a fugitive.
records
precedents
Prior
of judicial
area
having
the superseding indictment
vindictiveness have de-
returned,
the government was not con
tailed the
prior opinions
with
increasing
cerned
amount of Court of the United
and this
States
court.
punishment
to which the defendant
here,
To focus
reader’s
recall
is not
exposed.
would be
It
the prosecutor’s
is
holdings
to review those
necessary
depth.
that,
impression
even if
defendant
Pearce,
North
Carolina
offense,
convicted
conspiracy
he
The panel erroneously assumed that
obtained a trial de novo. The Court
original
held
charged
indictment
Krezdorn with
the prosecutor’s
to
action
conspiring
forge
presumption
raised a
Ruiz border crossing
applications.
only
vindictiveness that could
rebut-
F.2d at 1230. On this
ted
assumption,
by proof
charge
felony
held that the
could
had
merely
brought
substituted
not have been
outset.
a more serious
at the
Bor-
for “the
Hayes,
same basic
denkircher v.
criminal behavior.”
U.S.
It
held that
presumption
(1978),
tinguished Blackledge as
the sub
involving
Ill
charge
stitution of a more serious
rather
judicial
involving
history
of decisions
bringing
than the
of a new
and held
charge,
is
judicial
required
vindictiveness in fact was
now
is a
enough
clear
to teach that
prosecutor’s
overcome
discretion.
in this area of the
mistake to measure cases
Hardwick also relied on the breadth of the
proper
law
solu-
against
gauges.
fixed
prosecutor’s
es
charge decision discretion
by classifying prose-
tion is not to be found
Cox,
tablished in United
342 F.2d
States
adding
or
changing
cutorial decisions as
(5th
denied,
Cir.) (en banc),
cert.
charges,
amending
already
as
decisions
minded the prosecutor’s defendant that de government’s purpose seeking cision to increase severity was motivated by some other than the superseding “getting indictment was a vindictive desire deter or punish ap evidentiary around” an obstacle created peals, no vindictiveness is it, the appeal. panel expressed As the created. the issue of trying vindictive attempting to turn “[T]he ness, prosecutor may offer proof of the appeal successful into a pyrrhic victory.” suggested sort in Hardwick that as a mat wrong. F.2d at 1231. This is In Krez ter of fact his were actions not vindictive. dorn’s original we were presented proof (by The burden of a preponderance of with a evidentiary claim of error. In re evidence) remains on the defendant who sponse claim, to that we ruled that Krez If, raised the affirmative defense. on the dorn’s four convictions must be reversed. hand, other provides course events no Although we that the proof observed admit objective indication that would allay a rea ted in error might proper been if sonable apprehension by the defendant that Krezdorn were with charged conspiracy, we the more vindictive, i.e., serious did not rule whether the prosecutor could inspired by a determination to “punish a *6 exercise his to add such a charge. discretion pesky defendant for exercising his legal Krezdorn’s appellate victory vindicated his rights,” a ap right not to be convicted of the substantive plies which cannot be overcome unless the improper counts based on evidence. He government proves aby preponderance of However, now stands an innocent man. his the evidence that events occurring since the assertedly subject felonious conduct is still time of the original charge decision altered to another process certainly trial —a initial the prosecutor’s exercise of dis contemplates cretion. the exercise proper prose
cutorial
It
discretion.
confuses the eviden
IY
tiary principle
vindicated
the
and
the
the
independence
prosecutorial
func
Krezdom’s case falls in the former
category. The district court
tion —a matter not
the prior panel—
found that the
before
“primary,
sole,
if not
govern
the
subsequent
reason that
addition of
ment
in having a superseding indictment
the suggested
conspiracy
deprived
returned was to overcome the Fifth Cir
him of his prior appellate success.
objection
cuit’s
to the introduction of the 32
The decision of the district court is re-
extraneous forgeries.” This finding estab
is
versed and the cause
remanded with di-
lishes that a reasonable minded defendant
rections to
with Krezdorn’s
proceed
retrial
should have appreciated that
prosecu
on the remaining substantive counts and
tor’s actions were taken to pursue a course
charge.
added conspiracy
indicated by
opinion
the appellate
rather
to impose
than
penalty
on Krezdorn for
REVERSED and REMANDED.
competing
between
two
GOLDBERG,
with whom The conflict
these
Judge,
Circuit
hoc,
POLITZ,
dissenting:
courts
articulate ad
Judge,
joins,
Circuit
has led
goals
generated
rules and
unfor
has
case-by-case
vindictive-
concept
prosecutorial
rea
clouded
misnomers that have
prosecu-
all
tunate
potentially encompasses
ness
actual
issues.
stage
of a criminal
discussion
every
torial action
soned
however,
in-
Supreme
the balance of
proceeding.
Recently,
Because
368, 102
Goodwin,
and
terests between the defendant
v.
United States
shifting
proceed-
throughout
is
articulated
2485,
(1982),
State
given a more
but Black-
right,
of a constitutional
Supreme
trial. The
sertion
at his first
received
vindictiveness” as
ledge
“prosecutorial
saw
punish-
held that such an increase
systemic problem:
a much more
when
rea-
only
ment would be allowed
record,
in the
appears
for the increase
son
readily
has the means
[I]f
upon
“must be based
and that
the reason
discourage
appeals by
hand to
such
at
—
objective
concerning
information
identifia-
felony
in-
“upping
through
the ante”
of the defendant
part
ble conduct on the
a convicted misde-
dictment whenever
original
occurring after
the time
statutory appellate
his
pursues
meanant
at
sentencing proceeding.”
can insure that
remedy
State
—the
at
S.Ct.
will brave the
hardy
the most
defendants
hazards of a de novo trial.
the same ba-
Blackledge, supra, extended
is,
course,
that the
no evidence
There
Blackledge the
prosecutor.
sic idea to a
faith
in this case acted in bad
initially
was
tried
convicted
defendant
seeking
felony
indict-
maliciously
or
in state district court and
of a misdemeanor
our
Perry. The rationale of
against
ment
to a trial de
statutory right
exercised a
case, however,
Pearce
judgment
in the
superior
prose-
novo in the state
court.
proposition
grounded
was not
on a felo-
cutor then indicted the defendant
must
retaliatory
that actual
motivation
for the same
ny charge
behavior.
Rather,
emphasized
we
inevitably exist.
Blackledge Court extended Pearce and held
of such vindictiveness
that “since
fear
proc-
that the reindictment violated
due
unconstitutionally deter
defend-
ess clause. The
also noted:
ant’s exercise of
clearly
This would
be a different case if
conviction,
attack his first
collaterally
impossi-
that it was
State had shown
that a
requires
due
also
defend-
proceed
ble to
on the more serious
apprehension
ant be freed of
such
States,
outset,
at the
as in Diaz v. United
part
motivation on the
retaliatory
vindictiveness” to describe the
it
word on the
sought to
next
remedy.
retrospect,
Court’s
words,
discretion
subject
unfortunate choice of
because
was in the
*8
suggests
Hayes,
434 U.S.
problem
merely
that
one mode. Bordenkircher
663,
(1978),
renegade prosecutors
357,
to
charges Blackledge gen- after the defendant refused to and Bordenkircher. See charges. plead guilty Note, to lesser Borden- at erally, Michigan supra, 200-08. kircher to overrule purport did not Black- unclear This situation remained until Good- ledge, emphasize but chose to some rather win.
factors in Blackledge pass- mentioned ing and some of the deemphasize key II. GOODWIN TO THE RESCUE points just I discussed from Blackledge.
Thus,
Blackledge
in
A.
and Borden-
empha-
Reconciling
Bordenkircher
in plea
sized the societal interest
kircher
bargaining
prosecutor’s
and the
need for
in
discretion
457
United States v.
U.S.
charging decisions. As a
corollary,
368, 102
2485,
S.Ct.
73 L.Ed.2d
placed
emphasis
less
on the need to brought
coherence to
finally
promote
fact,
process.
due
the field
the two
by harmonizing
competing
went
slightly
so far as to state a
revisionist
rights
of legal
interests of free exercise
view of the
Blackledge:
thrust of
prosecutorial
need for
discretion. Good
emphasized
Court has
that the due win
accomplished
by holding
this feat
process violation in cases such as Pearce
greater
that one interest was
virtue
than
and Perry lay not in the
possibility
other,
but
by recognizing
each in
defendant
be
might
deterred
terest has an
primacy.
area of
Goodwin
right,
exercise of a
see
legal
Colten v.
articulated a
distinction
pretrial/posttrial
104,
Kentucky,
U.S.
S.Ct.
context,
and held that
in the
pretrial
584;
L.Ed.2d
v. Stynchcombe,
Chaffin
need
prosecutorial
for
was fore
discretion
most.
but rather
danger
the State
Goodwin
criminal
involved a
defendant
might
retaliating against
the accused
facing
charges for
misdemeanor
assault.
lawfully attacking his conviction.
guilty
Goodwin refused to
to the mis-
plead
Blackledge
Perry, supra,
U.S.,
See
demeanor
a trial
requested
by jury.
26-28,
S.Ct.,
at
at 2101-02.
The prosecutor then
Goodwin for
reindicted
Id. 434 U.S. at
at
668. Need-
a felony charge for the same incident. The
less
say,
perhaps
less-than-faith-
Court in
held that
squarely
Goodwin
ful account of
Blackledge
actually
pretrial context the
has the dis-
says on the
pages.
event,
cited
In any
cretion
charges
to increase
after a defend-
quite clearly
Bordenkircher
is a decision in
ant’s
except
exercise of a
for the
right
the prosecutorial discretion mode.
purpose of
that exercise. The
punishing
C. Confusion in the Circuits
question we must now face is what con-
Bordenkircher,
After
straints
remain on a
discretion
vindictiveness doctrine was in disarray.
pretrial
increase
outside
con-
Blackledge and Bordenkircher had articu-
text. Though
does not explicitly
Goodwin
lated two
guiding
distinct
principles, always
address that
it is
question, when
viewed
conflict,
always
with both
present and
the context of
Blackledge
Bordenkirch-
neither carrying
any
with it
intrinsic limit-
provides
er it
implicit
ample
but
answer.
ing precept. Blackledge stood
for the
of criminal
to be
defendants
free to exercise
Presumption
B. The Posttrial
rights
fear
reprisals
without
phrase
judi-
to the
through vindictive
contributed a
exercises
cial vocabulary
discretion.
as unfortunate
as
Bordenkircher
stood for
least
pragmatic recognition
Blackledge’s “prosecutorial
for the
vindictiveness”:
need of pros-
ecutors to
Blackledge
have discretion in
Goodwin described Pearce and
bringing addi-
tional
charges.
or different
as creating
The circuit
of vindictive-
“presumption
courts had
Thus,
obvious and
ness.”
way
stating
understandable dif-
another
ficulty
two
melding
goals
question
conflicting
implicitly
answered
Goodwin is:
*9
right at stake in
to a
presumption
right
does a
of vindictiveness
Goodwin —the
When
trial
instead of a bench trial —from
jury
arise?
Blaekledge:
in Pearce and
answer to this
can
compelling
question
A
jury
judge
either a
or a
[BJefore
by looking
be found
to the rationale Good-
present
against
State must
its full case
used to avoid a
in the
presumption
win
the accused and the defendant
is entitled
context. The
relied on
pretrial
Court
to offer a full defense. As compared to
Blaekledge
proposition
pre-
for the
that a
complete
trial de novo at
issue in
sumption of vindictiveness
arise only
should
Blaekledge,
jury
opposed
a
trial —as
to a
in
“that pose
instances
a
likelihood
realistic
”
require duplicative
bench trial —does not
of ‘vindictiveness.’
Blaekledge,
expenditures
resources
mind,
at
at 2102. With that in
a final judgment may
before
be obtained.
explained
Blaekledge
Pearce and
Moreover,
judge
unlike the trial
in
as follows:
Pearce,
party
no
is asked “to do over
Both Pearce and
involved
Blaekledge
it
thought
already
had
done cor-
procedural
the defendant’s exercise of a
A
no
rectly.”
“personal
has
right that caused a
after
complete retrial
in a bench trial
thus no
stake”
and
reason
he had been once tried and convicted.
engage
in “self-vindication”
a
The decisions in these cases reflect a rec-
request
jury
defendant’s
for a
trial. Per-
ognition by the Court of the institutional
most
haps
importantly,
institutional
bias inherent
judicial
system
the retrial of a
against
ques-
bias
decided
against
the retrial of issues that have
supported
tion
decisions in
been
already
decided. The doctrines of
Blaekledge
Pearce and
simply has no
decisis,
judicata,
stare
res
the law of the
in this case.
counterpart
case,
based,
jeopardy
and double
all are
part,
at least in
on
deep-seated
bias.
(footnotes omitted).
at 2494
102 S.Ct.
While none of these doctrines barred the
justifying
presumption
factors
a
in Black-
retrials in Pearce
Blaekledge,
ledge
certainly
any
and Pearce
exist
pressure
same institutional
that supports
posttrial
legal right.
assertion of a
them might
subconsciously
also
motivate
Another answer to the
of when
question
a
judicial
vindictive
re-
presumption
arises can be found
look-
sponse to a defendant’s exercise of his
Goodwin;
holding
presump-
to the
no
to obtain a retrial of a decided
in the pretrial
tion of vindictiveness arises
question.
context. The
inference
negative
obvious
Goodwin, at 2490-91.
distin-
holding
presump-
from this
is that such
guishing
context,
the pretrial
not-
context.
posttrial
tion does arise
all
ed
of the compelling
prosecu-
reasons a
by looking
This conclusion is bolstered
tor might have for increasing charges pre-
Pearce, Blaekledge,
relative to
stated, “Thus,
trial. The court
then
As the
explained
Bordenkircher.
change in the charging decision made after Goodwin, it
granted
clarify
certiorari
an initial trial is completed is much more
scope
Blaekledge.
of Pearce and
likely
improperly
motivated than is a
Blaekledge
2487. Pearce and
were cases
pretrial decision.” Id. at 2493.
It is cer-
involving
tainly
true that once a
has final-
noted,
repeatedly
they
and as Goodwin
ized his
enough that he or she is
de-
posttrial
were
cases. Bordenkircher
willing
go
them,
to trial on
the needs for
and,
as Good-
apply presumption
clined to
charging
less,
discretion tend to be much
noted, it
case. Thus we
pretrial
win
see,
Note,
Michigan
212-13,
supra, at
something considerably
powerful
more
the likelihood of
great-
vindictiveness much
negative
than a mere
inference. Goodwin
er.
procedural
partitioning
claimed to be
Finally,
Blaekledge,
distinguished
the bur-
universe between Pearce and
cases,
den to the government
asserting
and Bor-
posttrial
*10
evidence,
making
denkircher,
objective
discre-
also
pretrial
the
calls for
parti-
tion
Goodwin drew the
motive
I will discuss
case. Because
actual
irrelevant.
trial, I can
that
tioning
only
line at
conclude
points briefly.
these two
presumption
a
of vindic-
Goodwin mandates
After Goodwin.—
1. Deterrence Lives
tiveness in
context.
posttrial
the
Blaekledge
seeking
Pearce and
were
ar-
short,
though
explic-
Goodwin does not
prevent prosecu-
ticulate a rule that would
hold,
it
itly
clearly
so
I believe
stands for a
of
deterring
legal rights
tors
exercises
from
Pretrial,
proposition.
dual
no presumption
by making them
by criminal defendants
Posttrial,
justified.
of
any
vindictiveness is
of
In a deterrence
fearful
retaliation.
the
“upping
by
prosecutor
the ante”
after a
scheme,
prosecutor’s
actual motive is
of
legal
gives
defendant’s exercise
a
right
irrelevant;
question
is not the
operative
to a
of
rise
vindictiveness.
rather,
mind,
prosecutor’s
but
state of
Blaekledge
Goodwin harmonized
Bor-
of
defendant contem-
the state
mind of a
drawing
denkircher
a
by
bright line
trial.
legal right.
Bor-
plating
exercise of a
Pretrial,
reigns
supreme;
Bordenkircher
recast
this motivation as one
denkircher
posttrial, Blaekledge holds
dual
sway. This
avoiding
actual vindictiveness.
solely
sovereignty
to ap-
should obviate the need
acknowledging
while
the impor-
unclear, unpredictable,
ply
unpalatable
actual
in the Bor-
tance of
case-by-case analysis.
context, see,
-ruled pretrial
e.g.,
denkircher
12;
at 2492 n.
id. at
also
C. Rebutting
Presumption
acknowledged that the deterrence rationale
question
final
is what
with
to do
of Pearce and
survives in the
Blaekledge
presumption of vindictiveness once
arises.
posttrial context.
How can it
point
be rebutted?
It is at this
evident
for this
support
position
most
the two misnomers in
doctrine
simple
fact
that Goodwin as whole
combine forces to wreak havoc on careful
supports
Blaekledge presumption in the
analysis. The “presumption” is no more an
posttrial
supra
context.
Part
II.B.
See
evidentiary presumption than the
evi-
parol
specifically,
More
described the
dence rule is an evidence rule. And “vin-
of a
Blaekledge presumption as one
motive,
dictiveness”
not to
refers
the actual
“that
free
of apprehen-
would
defendants
but rather to
perception
of a defendant
sion
such a
motivation
retaliatory
on the
considering asserting
right. The
part
prosecutor.”
This gains conclusion support firm give no evidence in this case that could First, vindictiveness; Goodwin. Goodwin con- endorses the rise to a claim of actual tinuing vitality goal suggested deterrence the prosecutor never Pearce and Blaekledge, which brought makes influence the re- actual motive irrelevant. conviction in spondent’s conduct. The Second, discussing rebuttal, pre- this case be reversed if a prove,” question cult id. at
sumption applicable of mo- vindictiveness — *11 case, that would be point tive. there no all cases—is warranted. note Id. at 2494-95. felony indictment.” peals conclude that the In this with not sumption ess violation S.Ct. omitted). challenge F.2d actual vindictiveness in stated: case, [250] of has vindictiveness, (emphasis however, “On Thus, The Court further stated: at 252. been finding. prosecutor this record we even in the [U.S. established. in Respondent original, Absent no due did seeking Goodwin] face not act readily of Ap- proc- foot- does pre- evidence — (emphasis defendant exercised his in restrictions would be to hension There acceptable such a could not Goodwin. restricting a showing certainly conclusion of subjective added). vindictiveness. have rebuttal evidence to establish that “the increased charges would be been to be evidence brought rights.” Id. at subjective no point dispel any appre- inescapable Indeed, point is perfectly before the objective I believe of motive. requir- after such Goodwin record, D. meets Krezdorn factual of finding, supported by the vindictiveness, no actual a “presumption of short, posttrial the rule for the context vindictiveness” still would establish due easily can be stated after Goodwin. In the evidentiary pre- violation. No mere context, posttrial a so-called sumption with presence concerned vindictiveness arises time the any prosecu- absence of actual vindictiveness would “ups tor the ante” after defendant exer- function that manner. legal right. cises a the ante cer- Upping tainly possibility includes a of increased This further conclusion is reinforced sentence, be but need limited to that. not gave indications the Court Blackledge, at 29 n. See would rebut the presumption. pre- at n. 6. presumption may be sumption when it arises based on Pearce only by objective rebutted evidence show- and Blackledge. As the Goodwin Court charges ing that increase could not have noted, the Pearce “Court applied pre- brought been until after the defendant ex- sumption vindictiveness, which be ercised the right. overcome only by objective information mind, it With this rule in is a simple the record justifying sen- increased dispose matter of this case. Appellee tence.” Id. at 2489. In Black- discussing successfully appealed Krezdorn his first ledge, the Court noted that presump- “[t]he then conviction. The upped again tion objective could be overcome by by reindicting ante more serious evidence justifying action.” Thus a presumption crime. arises. The Id. at 2490 n. 8. The Goodwin Court also only explanation for increased charges Diaz, quoted Blackledge’s example of panel was that in Krezdorn’s opinion where “it was impossible proceed dicta, first reminded the appeal, prosecu- more serious charge at the outset.” Id. a long-standing tor of rule of evidence. (quoting Blackledge, U.S. at 29 n. certainly definitely This does not con- 7). 2103 n. objective charges stitute evidence that summarized Blackledge and as Pearce es- brought could not been before Krez- tablishing a presumption that could be dorn’s first successful Due appeal. process, rebutted “unless the comes for- therefore, requires additional ward with objective evidence to show dismissed and decision of the the increased charges could not have been district be affirmed. brought before the defendant exercised his rights.” Id. at 2488. CONCLUSION If the vindictiveness were now, clear by my analysis As is intended to be a mere evidentiary presump- problem prosecutorial vindictiveness dif- tion actual relate would considerably majority fers from that of the to that very subjective, diffi- “complex and Fifth result I would Circuit. The reach plainly in this case differs. The un-
derlying concerns also differ. I place more
emphasis on preventing prosecutorially in- apprehension
duced of vindictiveness so
that a criminal defendant may freely exer-
cise rights granted him by law. The
majority places emphasis more on the pros-
ecutor’s need for discretion in charging and
limits solely by that discretion prohibiting
actual vindictiveness.
Because the majority’s places rule upon choice,”
defendants the “grisly supra see
note I believe it is bad policy and would solely
dissent ground. More im-
portant, however, my firm belief that the
Fifth Circuit is being less than true to the
scheme established Goodwin. I believe
Goodwin, though' totally explicit, estab-
lishes a pretrial/posttrial distinction. posttrial arena, due process and the
Supreme Court command us to be most
solicitous of the possibility of an apprehen-
sion of order to preserve integrity protections imbedded in
our criminal justice system. The majority
appears to me to be unduly solicitous of the
expediency required to secure criminal con- viction. I believe that the Consti-
tution, and fundamental notions of fairness
dictate that expediency not be our first
priority. Accordingly, I respectfully dis-
sent. DIAZ, Jr.,
Leonard O.
Petitioner-Appellant, MARTIN, Warden,
T.C. Federal Institution, al.,
Correctional et
Respondents-Appellees.
No. 82-1480.
United States Court Appeals,
Fifth Circuit.
Nov.
Rehearing and Rehearing En Banc 23, 1983.
Denied Dec.