UNITED STATES, Appellant, v. Nina K. SCHILLER et al., Appellees.
No. 79-1206.
District of Columbia Court of Appeals.
Decided Oct. 21, 1980.
Argued March 27, 1980.
Accordingly, I dissent from the majority‘s reversal. However, I agree that if the case goes to the jury, then appellant Crayton should not be dismissed as a party plaintiff and hence I concur to this extent with the majority.
Ladd B. Leavens, Public Defender Service, Washington, D.C., with whom Maxine Auerback, Public Defender Service, and Russell F. Canan, Jeffrey B. O‘Toole, Washington, D.C., and Stephen B. Bright, Washington, D.C., appointed by the court, and Robert Avakian, pro se, were on the brief, for appellees. Silas J. Wasserstrom, Public Defender Service, Washington, D.C., also entered an appearance for appellees.
Daniel P. Sheehan, Boulder, Colo., Victor M. Goode, New York City, and Paul Harris, were on the brief for amicus curiae.
Before GALLAGHER, MACK and PRYOR, Associate Judges.
PRYOR, Associate Judge:
Of seventeen appellees, eight were indicted in a thirteen count indictment, and the remaining nine appellees were charged in a second nine count indictment.
Upon appellees’ request that the two indictments be consolidated, the government sought and obtained a third superseding
I
On June 20, 1979, the grand jury returned a fifteen count indictment against eight of the appellees (hereinafter the “Schiller” appellees), charging thirteen counts of assault on a police officer with a dangerous weapon,
All charges allegedly grew out of a January 29, 1979 demonstration protesting the visit of Vice Premier Teng Xiao Ping of the People‘s Republic of China with the President of the United States. The demonstration was sponsored by the Revolutionary Communist Party and the Committee for a Fitting Welcome. When the demonstration turned violent, the police began making arrests. Many of the charges against these persons were dismissed leaving the present seventeen appellees.
The nine Avakian appellees were arraigned before Judge Carlisle Pratt on July 3, 1979. Similarly, the Schiller appellees were arraigned on from three to five counts of their fifteen count indictment before Judge Leonard Braman on July 5, 1979. Judge Braman found the remaining counts in the Schiller indictment to be defective1 and correctable only by reindictment.
At the July 5, 1979, arraignment before Judge Braman, the appellees informally announced their intention to call approximately seventy-five defense witnesses, and notified the court that the appellees would be seeking by motion to join all seventeen appellees and to consolidate the two indictments for trial. Judge Braman asked appellant‘s position. Appellant responded that it had considered requesting a single indictment, but that during the grand jury investigation “it became obvious that there were two different types of cases and these were indicted separately....”
On July 17, 1979, appellees filed a written motion requesting that all defendants be tried together. Appellees, in their motion, waived “any prejudice to their particular case” that would result from a consolidated trial. In its response, the government stated that a primary purpose of two indictments initially had been “to minimize prejudice to the defendants who[m] we had the least amount of evidence.” While not opposing the request, the government asserted that it would be impractical and prejudicial to try the two existing indictments together, and that it, therefore, “intend[ed] to seek reindictment” so that all seventeen appellees would be charged as codefendants in one new indictment.2
Appellees were arraigned on the superseding indictment on August 13, 1979. On August 27, appellees moved to dismiss the superseding indictment, contending, inter alia, that appellant had responded vindictively to their motion for consolidation of trial in violation of appellees’ due process rights.3 In opposition to appellees’ motion to dismiss, appellant urged that if all of the accused were to be tried jointly, the government was entitled to prove that each was acting in concert with others. This required aiding and abetting counts as to all charges which were not present in the two initial indictments. It was stated:
[W]hen the appellees asked for joinder so that they could emphasize their common ground and their common defense to all charges, the government gave them what they asked for. The new indictment holds them all accountable for all the assaults to which they plan their common defense.
At a status hearing on October 17, 1979, Judge Pratt ruled that due process required a return to the same level of jeopardy as had existed in the original indictments, thus granting in part appellees’ motion to dismiss the superseding indictment. Rather than undertake selectively to dismiss counts of the new indictment, however, the trial court advised appellant that it could either advise him of a manner in which he could enter selective dismissals of the superseding indictment and thereby effect a return of the status quo, or reindict the case consistent with the spirit of his ruling to eliminate the appearance of vindictiveness.
Appellant subsequently advised the court that it would not be submitting a revised indictment. On November 14, 1979, the court entered an order dismissing the superseding indictment. This appeal followed.
II
With regard to the exercise of the rights of an accused, due process of law requires that even the appearance of vindictiveness must be absent from judicial proceedings. Thus, as a prophylactic measure, the Supreme Court, in North Carolina v. Pearce, 395 U.S. 711 (1969) reversed a conviction where a greater sentence was imposed on a defendant after he was retried following reversal of his initial conviction. The Court found that the imposition of the greater sentence, for which there were no identifiable objective reasons appearing on the record, resulted in an impermissible chilling of the defendant‘s right to appeal.4 The Court noted:
Due process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since such fear of vindictiveness may unconstitutionally deter a defendant‘s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. [Id. at 725 (footnote omitted).]
In Blackledge v. Perry, 417 U.S. 21 (1974), the Supreme Court extended its holding in Pearce to encompass vindictive prosecutorial action. In Blackledge, the defendant, convicted of an assault misdemeanor in a state court, claimed his right to a trial de novo in a higher court. The prosecutor then obtained a superseding indictment charging the defendant with a felony, assault with intent to kill, based on the same act as the earlier charge. The Supreme Court held that where a prosecutor who has a stake in the outcome “ups the ante” after a defendant exercises his right to a trial de novo in a two-tiered criminal system the ruling of North Carolina v. Pearce applies. The Blackledge Court emphasized that the lack of proof of bad faith is not fatal to a defendant‘s due process claim. Instead the Court observed:
There is, of course, no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry. The rational of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that “since the fear of such vindictiveness may unconstitutionally deter a defendant‘s exercise of the right to appeal ... [it is the apprehension of the harm which is the evil].” [Blackledge v. Perry, supra at 28, quoting North Carolina v. Pearce, supra 395 U.S. at 725.]
In Wynn v. United States, D.C.App., 386 A.2d 695 (1978), this court held that a prosecutor violated due process by adding additional charges in a misdemeanor case after the defendant had successfully moved for dismissal for want of prosecution. Finding that the government had offered no explanation for its action, we vacated the convictions.
The enunciations of Blackledge and Pearce have been interpreted as each establishing a prophylactic rule imposing limits upon prosecutorial discretion in seeking new indictments or in conducting retrials when such actions carry with them the opportunity of retaliation for a defendant‘s exercise of a statutory right that has due process implications. In the context of a colorable claim of prosecutorial vindictiveness, the prosecutor must justify his action in the same manner as would a judge under Pearce. United States v. Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976); United States v. Jamison, 164 U.S.App. D.C. 300, 505 F.2d 407 (1974); United States v. Gerard, 491 F.2d 1300 (9th Cir. 1974); Sefcheck v. Brewer, 301 F.Supp. 793 (S.D. Iowa 1969). The prosecutor‘s explanation should, of course, be viewed against the background of historic prosecutorial discretion.5
United
III
The teachings of Blackledge, Pearce, and their progenies have left us with the rule that due process of law requires the elimination of even the appearance of vindictiveness from the operation of the legal process.6 In effectuating that principle, we think the approach governing such situations should be as follows: The trial court should, upon motion, review the accumulation of circumstances of record and decide, without more, as a threshold matter whether the allegations as to a prosecutor‘s actions give rise to a realistic likelihood of prosecutorial vindictiveness.
If this examination results in a negative finding, the trial court should go no further, but need only enter the appropriate ruling. If, however, the examination results in an affirmative finding, the obligation is then on the government to answer or explain the allegations.
In determining whether the government has met its burden, the trial court should consider the government‘s explanation in conjunction with several factors. These factors include, but are not limited to:
1. The nature of the case. For example, a prosecutor should have greater latitude to augment charges when dealing with multiple criminal acts or a crime spree; see Jackson v. Walker, 585 F.2d 139, 145-46 (5th Cir. 1978); Hardwick v. Doolittle, 558 F.2d 292, 301 (5th Cir. 1977), than when he is dealing with a simple criminal act. See Miracle v. Estelle, 592 F.2d 1269, 1276 (5th Cir. 1979).
2. The status of the case. A prosecutor should have broader leeway to add charges before an initial trial than in a case where a defendant is to be tried a second time. See United States v. Thomas, 593 F.2d 615, 624 (5th Cir. 1979); and
3. The (a) nature of the right involved, (b) vindictiveness alleged, and (c) nature of the harm involved. Important to the trial court‘s consideration is the length of additional potential incarceration. If a prosecutor seeks to augment the charges when a defendant exercises his right to a trial de novo, as occurred in Blackledge, the appearance of vindictiveness would be great. On the other hand, if a prosecutor seeks a superseding indictment on retrial which substitutes a lesser charge which happens to carry a greater potential prison term, an appearance of vindictiveness exists, but defendant‘s apprehension of vindictiveness will not be great. See Jackson v. Walker, supra. In each case there would be a factual determination to be made, necessarily on an ad hoc basis.
This approach affords some degree of manageability to the oftentime nebulous concept of prosecutorial vindictiveness, balancing the conflicting legitimate interest of both parties, and thus providing some degree of structure to the trial court‘s examination for the existence of prosecutorial vindictiveness.
In applying the approach we outlined in Part III of this opinion, we find the trial court to have correctly made the threshold determination that the reindictment of appellees and their resulting added exposure to liability, resulted in the appearance of vindictiveness on the part of the government. In the wake of such a finding, the burden was then on the government to dispel that appearance.
In the proceedings below, the government proffered an explanation for the increase in penalties in the new indictment, to wit: appellees, by their prearranged and concerted attack on the police, are jointly and individually responsible for each of the assaults alleged. A consolidation of all the charges, though not the approach initially chosen by the government, necessarily increases the number of charges grounded on the theory of aiding and abetting.
In attacking the government‘s explanation, appellees point to the July 5, 1979, arraignment before Judge Braman, where appellees informally announced their intention at a later date, to consolidate the two indictments for trial joining all seventeen appellees. Judge Braman asked the government‘s position. The government responded that during the grand jury investigation “it became obvious that there were two different types of cases and these were indicted separately.”
Appellees would have this court find that the fact that this explanation of the government differs with their later explanation—i. e., that the initial division of the charges against appellees had been artificially made for the convenience of the court and the benefit of appellees—the later explanation becomes one of the elements giving rise to the appearance of vindictiveness and thus cannot serve an explanative role. We disagree.
The government‘s explanation for its initial charging scheme: (1) was given at the preliminary hearing stage; (2) emanated from an informal statement made by appellees; and (3) involved seventeen defendants all of whom were facing numerous charges. We find it unreasonable, considering these circumstances, to hold the government to pinpoint accuracy and steadfast consistency in regard to every statement it makes. Though such a responsibility may be imposed at other stages in the progression of a case, such is not the case at this stage.
Proper analysis of this case requires that we consider the nature of the request being asserted—a request for a joint trial. The Criminal Rules of the Superior Court do not provide to an accused the right to a joint trial. However,
The court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indictment or information. This procedure shall be the same as if the prosecution were under such single indictment or information....
On its face, a request of this nature carries with it much less potential for inviting punitive retaliation by the prosecutor than, for example, successfully appealing a conviction or securing a mistrial, both of which exact from the prosecution the effort and expense of a new trial. Compare Blackledge v. Perry, supra; United States v. Jamison, supra.
A joint trial of numerous defendants, by itself, is presumptively less prejudicial to the prosecution than to the defense because of the risk of guilt by association. Consequently, a request by defendants to be tried together normally thwarts no prosecutorial purpose and, in general, is unlikely to invite retaliation. In short, the nature of the assertion by appellees in itself makes less likely that vindictiveness underlaid the government‘s decision to seek reindictment. When we examine the government‘s statement of concern for the manageability of conducting a seventeen defendant trial, and view that explanation in conjunction with the factors we outlined in Part III, it becomes apparent that the trial court‘s ruling that, in these circumstances, the government was motivated by vindictiveness in
An examination of the totality of the circumstances in this case compels a finding that the government‘s explanation for the reindictment, not questioned by the trial court, was adequate to negate any realistic apprehension that vindictiveness motivated the increase in charges. Accordingly, the judgment of the trial court is reversed.
Reversed.
GALLAGHER, Associate Judge, concurring:
I concur, though I express a reservation in respect to the guidelines laid down in Part III of the majority opinion.
I might say that I have a certain difficulty in understanding “the right” which the dissenting opinion says was asserted in this case. The defendants moved that they all be joined for trial. I know of no such right. Certainly, it is not “assertion of right” within the meaning of Blackledge v. Perry, 417 U.S. 21 (1974) or Wynn v. United States, D.C.App., 386 A.2d 695 (1978).
MACK, Associate Judge, dissenting:
I find the analysis of the majority troubling and its holding contra to established law in this jurisdiction. I can think of no more compelling combination of circumstances for invoking the due process doctrine against prosecutorial vindictiveness than that presented here.
The spectre of prosecutorial vindictiveness arises whenever the prosecution “ups the ante” after a defendant has exercised a right in which the prosecution has a stake. Here the defendants exercised a right, permitted by our rules, in requesting joinder; the government by its own admission had a “stake” in prosecuting the defendants in two groups; the reindictment following the motion for joinder, without advance notice to the defendants or the court, exposed each defendant to 105-135 additional years punishment on 10-14 additional felony counts. This is the appearance of vindictiveness which the majority recognized. Having cogently and correctly argued that due process requires the elimination of the appearance of vindictiveness in the legal process, the majority lapses into faulty reasoning.
In the first instance, the majority has lost sight of the fact that the trial court, after a hearing, found not merely the appearance of vindictiveness but actual vindictiveness. This record clearly shows that the trial judge found as a matter of fact that the government had retaliated against the accused for requesting joinder. We are required to sustain the trial court‘s determination unless it is clearly erroneous or without support in the record.1
In the second instance, the majority—certainly after the fact in this case—has written into the doctrine of prosecutorial vindictiveness a balancing test2 which is contrary to established precedent, inconsistent with due process concerns, and irrelevant to the purposes for which it is advanced. Thus we all agree that, once there are factors raising the appearance of vindictiveness, it is the government that has the burden of dispelling the likelihood of such. Yet the majority‘s inquiries as to the nature of the right exercised by the accused, the nature of the harm suffered by the accused, and the nature and status of the case shed no light whatsoever on the question of whether the government was acting in retaliation. Quite obviously, once the possibility of vindictiveness exists, the proper inquiry is whether the alleged retaliatory action was sufficiently independent of the defense assertion of a right as to make the likelihood of vindictiveness de minimus.
Both the Supreme Court in Pearce3 and Blackledge,4 and the United States Court of Appeals for the District of Columbia, in United States v. Jamison,5 have alluded to the type of factors and proof necessary to dispel an apparently vindictive motive.6 In Pearce, the Supreme Court held that a sentencing judge, upon retrial, must justify a harsher sentence on the record in a way which negates the possibility of vindictiveness. In Blackledge, the Court noted one factor that might dispel the likelihood of vindictive motivation of a prosecutor‘s reindictment—the impossibility of proceeding
In my view, the reindictment should not stand in this case. The trial court held the proper inquiry8 to enable the government to dispel the likelihood of vindictiveness and determined thereafter that there were facts establishing vindictiveness. The court‘s determination is well supported by a record, not only showing that there were no intervening events or new evidence dispelling vindictiveness, but replete with inferences to be drawn to the contrary from prosecutorial timing, inconsistent positions, inadequate explanations, a candid but near-facetious admission, and silence in the face of an affirmative duty to speak.
Thus the record shows that at the July 5 arraignment of the Schiller defendants, the defense revealed they would seek joinder. The government opposed this suggestion,
The defense formally filed its motion for joinder on July 17. On July 24 the government obtained the second indictment. On July 25, the government filed its response to the formal motion, now giving a different reason for the first indictments: “the government was trying to avoid the confusion of having seventeen defense attorneys and seventeen defendants in trial at once and to minimize prejudice to the defendants against whom we have the least amount of evidence.” The government no longer opposed joinder “because the defendants now specifically waive any potential prejudice.” The pleading stated an intention to seek reindictment because it would be “impractical and prejudicial to the government to try the existing indictments together.” But it had already obtained the new indictment, significantly increasing the charges as to each defendant, without revealing this “price” either to the defense or the court. This silence of the government is a key factor in the trial court‘s conclusion.
Finally, in its opposition to the defense motion to dismiss Indictment # 2, the government explained that “[f]or what the government had thought would be convenient packaging for trial, the government initially chose to [indict separately]. However when defendants asked for joinder ... the government gave them what they asked for. The new indictment holds them all accountable for all the assaults to which they plan their common defense.” (Emphasis added.)
We cannot ignore this record. Rather I think that in the circumstances here the Pearce-Blackledge line of cases operates, in effect, to take the decision to reindict out of the realm of prosecutorial discretion. The evidence was known to the prosecutor when it brought the first indictments. It made the initial decision, for apparently valid tactical and administrative reasons, to indict the defendants in two groups. When the motion for joinder was made, the government realized the trial of all the defendants under the existing indictments presented problems prejudicial to its case. Faced with the joinder motion and possible prejudice to its case, it should have opposed joinder unless a second indictment were possible and presented the issue to the trial court for resolution. This would have put the defendants on notice, as would seem to be required by Bordenkircher, of the possible consequences of their request, before it became a fait accompli. Had the second indictment been ordered by the trial judge, the taint of vindictiveness would have been dispelled.9
The defendants are charged with serious accusations. Yet the government, in giving them what they asked for, also is engaged in serious business, and so are we. Of the 78 persons originally arrested, the grand jury returned indictments for only 17. Each of the 8 Schiller defendants was originally charged with 15 felony counts, upped to 25 counts after reindictment, exposing them to potentially an additional 105 year punishment. The 9 Avakian defendants were each originally charged with 12 felony counts, none as named principals, to which 14 were added, increasing their punishment exposure to 135 years.10
Julio D. VARELA, Appellant, v. HI-LO POWERED STIRRUPS, INC., Underwriters Laboratories, Inc., First Virginia Leasing Co., Will-Burt Co., National Restoration Corp., and A.A. Ladder & Supply Corp., Appellees.
No. 79-477.
District of Columbia Court of Appeals.
Argued en banc June 9, 1980.
Decided Oct. 28, 1980.