United States v. Tallice Andrews and Thurston Brooks

MERRITT, Before KEITH and Circuit Judges, GREEN,* Senior District Judge.

* Green, Judge, Ben Ohio, Honorable C. Senior District sitting by the Northern District of designation. GREEN, Pearce-Blackledge. The Dis Judge. District hibited under C. Senior BEN and dis granted trict motion upon to con- we are called action In this count. conspiracy missed the vindic- “prosecutorial question sider the Andrews, (E.D.Mich., F.Supp. principles enunciated under tiveness” 1978). Perry, Supreme Court 2098, 21, 40 L.Ed.2d 628 94 S.Ct. 417 U.S. Judge held opinion In his the District v. 395 (1974), North Carolina and even requires “Due of law that that 2072, 711, 23 L.Ed.2d 656 must be appearance the of vindictiveness (empha- judicial proceedings.” absent from 16,1975 defendants Tallice November On added). Id., construing p. 1239. sis Brooks and Thurston were Andrews he held: further Pearce and the Detroit Metro- stopped and arrested at interpreted language to Courts have this politan Airport.1 stopped and arrested Also colorable mean that in the context of a Fannie was one Braswell. with defendants the claim of vindictiveness 8, 1976 all three individuals On November actions justify must his or her narcotics and fire- jointly indicted for were judge in the manner as would a same 841(a)(1) under 21 U.S.C. § arms offenses event, fact unre under Pearce some or 924(b) respectively. 18 § and U.S.C. to of his lated the defendant’s exercise defendants An- December 1976 On af rights, which the learns of arraigned Brooks were before a drews and Ruesga charge. the v. ter initial U. S. Magistrate were and remand- 1976); -Martinez, (9th 1367 Cir. by government as requested ed without bail Jamison, U.S.App.D.C. v. 164 U. S. ruling They appealed that to the motion. Gerard, (1974); U. 491 505 F.2d 407 S. v. Court, January and on District 1974). v. (9th F.2d Cir. Sefcheck to were admitted bail.2 both defendants Brewer, (S.D.Iowa 1969). F.Supp. 793 January the Grand re- Jury On Blackledge, Consistent with Pearce and charging superseding turned a indictment di inquiries these courts’ have not been (Andrews, and the three defendants Brooks actual retaliation was rected at whether Braswell) conspiracy with an additional shown, appearance whether the but pursuant alleging to 21 § count U.S.C. exists, see also U. S. vindictiveness 841(a)(1). a conspiracy to violate 21 U.S.C. § 1976). Johnson, period conspiracy alleged covered the justi corollary holdings, As a of these 15-16, 1976, incorporated and November must fication for the increased possessing count offense of the substantive dispel actuality, appearance, not the intent to as the crime heroin with distribute Id., p. (emphasis of vindictiveness. be intended to committed. original). as in and Brooks there- Defendants Andrews appears Judge’s opin- It from the District in- superseding after moved to dismiss the cir- prosecution explained ion that They contended that indict- dictment. in- obtaining superseding cumstances of for procured in retaliation their ment dictment: exercising constitutionally protected bail, by pointing . out that to seek and as was the product cutor in case was and pro- inexperienced vindictiveness this representations Magistrate challenge legality District 1. A to the of that to and defense subject separate stop and search of a that Fannie Braswell had turned state’s opinion evidence, threatened, this States An- court. United and had been had been drews, 1979). F.2d 563 pro- placed protection in the federal witness opposition gram. government’s de- to the appear from the or While it does record ultimately attempt to be fendants’ successful opinion Judge, argu- District from the “vig- released on bail has been characterized as appear agree to this Court sides ment both orous.” government’s request defend- predicated upon ants be held without bail was should or could torial vindictiveness. The

did not realize she called sought conspiracy' have indictment. in a motion such as this to deter- This, mine in combination with moratorium whether the actions of the Jury likely engender chilling tor are effect work Grand District, challenges validity due on the exercise of Constitutional statu- Where, here, composition juries, tory rights. of those there is an retaliatory vacation schedules in the of- fice, argued, prevented presenta- imposes heavy it is law burden testimony concerning conspiracy justify tion of its conduct in a Jury days the Grand until two after doubt as manner that not removes vindictiveness, bond motion was puts the defendants’ decided. actual but rest represented counsel important Government has fears the exercise of scheduling rights justification but the moratorium will deterred. The presented would the the government difficulties she have offered here fails to conspiracy Jury provide the explanation” apparent evidence to Grand a “neutral mid-December, prior to the time defend- from the requi- the record which satisfies Id., motion.3 p. Sturgill, ants filed their bond site test. U. F.2d S. 307 [563 Id., 1977)] supra, p. 1241. at 309. 1244 added). (emphasis Judge’s not It is clear from the District opinion whether he credited such testimo- Judge’s We believe that the District ny,4 given that he found the reasons interpretation of Pearce and legally insufficient, holding:. be narrow, too and do find in those deci government the

That failed to support proposition “ap sions for the conspiracy prior to defendants’ assertion pearance proper of vindictiveness” is a stan right inexperi- of the to bail against because of dard which conduct is ence, mistake and difficulties Accordingly, with Grand to be measured. the decision Jury scheduling does not alter the fact below must vacated. charge “appears the increased vin- 711, North Carolina v. 395 U.S. uncorrected, dictive.” If left such action 2072, (1969), S.Ct. 23 L.Ed.2d 656 involved undoubtedly chill the assertion of question the penalty upon an increased Id., p. Constitutional 1243. resentencing. In that action the defendant making In such determination the District appealed original conviction, obtained a Judge expressed the view that the reversal, again convicted, was retried and superseding

factors which would sustain a severely upon and sentenced more indictment under the action facts this Supreme second conviction. The Court held changed newly were or circumstances dis- process prohibits that due actual vindictive- evidence, part covered fault without on the resentencing ness in and “since the fear of government. Id., pp. 1241, 1244. may such vindictiveness unconstitutionally Judge’s approach The District overall deter a right defendant’s exercise of the question this appeal collaterally attack his first convic- exemplified by following tion, from requires due process also that a de- concluding portions opinion. of his apprehension fendant be freed of of such a previously retaliatory

The cases part cited demonstrate motivation systemic Id., any 725, S.Ct., sentencing judge.” p. concerns involved in mo- p. tion dismiss indictment for holding 2080. Further that “In order to Again appear 3. while it does not rec- 4. The District did state that “the Court ord, represented argument it was before does oral not find that the action of the malicious, question integri- court counsel involved was nor does her Id., proceedings ty.” p. in the District error Court that the failing conspiracy was include count supervising attorney noted for cutor involved. involved, while in Chaffin trial was to a motiva- was [retaliatory] assure absence whenever a tion, pro- was unaware of the earlier jury we have concluded severe sentence a more judge imposes ceeding danger so that the of vindictiveness doing so trial, reasons for his a new Perry, su- was de minimis. Those reasons affirmatively appear. must 26-27, pp. 2098. In pra, 417 U.S. S.Ct. information con- objective must be based spoken Court had Colten the part on the cerning conduct identifiable being if an increased due violated' time of occurring after imposed purposeful pun- was “as sentence id., p. sentencing proceeding,” 104, 116, 1953, ishment”, 407 U.S. S.Ct. S.Ct., failing any to find p. 2081 and concept .in 32 L.Ed.2d while Chaffin record, in the Su- justification highly unlikely penalize was jury that a of the second ordered vacation preme exercising defendant for sentence. 17, 26, 93 emphasized. was 412 U.S. S.Ct. was extended to of Pearce The rationale argu- In 36 L.Ed.2d 714. Chaffin Blackledge v. Per- conduct in imposition of a harsher ment that the mere 2098, 40 L.Ed.2d 94 S.Ct. ry, 417 U.S. “chilling would have a effect” on sentence Blackledge the defendant rights exercise of constitutional the future misde- court on a was convicted in state 17, 29-35, rejected. 412 charge. When he exercised meanor assault 36 L.Ed.2d granted right to demand statutorily opinion, foregoing decisions In our obtained appeal, novo on de “ap- supportive concept are not of the of upon based felony assault indictment being appro- pearance of vindictiveness” before the Su- Upon review same conduct. applied in this priate standard to be it was held that preme Court imposition of the limit- they require nor do ante”, id., p. “upping the unexplained tion’s Pearce-Blackledge rule exceptions to the ed 28, the defendant’s 94 2098 violated S.Ct. by the District Court. We can- recognized even in the absence of process rights, due language in equate Supreme not Court’s prosecutor acted in any evidence that Blackledge concerning appre- and Pearce maliciously. Returning to the or bad faith of a realistic likelihood of vindic- the court reiterated that hension holding in may turning “appearance deter with a rule since the fear of tiveness a de- rights vindictiveness”, constitutional particularly light the exercise of in of apprehen- to be free of fendant is entitled to due the references in Colten and Chaffin part of retaliatory motivation on the sion of process by purposeful punishment violations the exercise response in state authorities penalization of a defendant in retaliation or process “Due of law rights and that the exercise of constitutional potential for vindictive- requires that such a regard While our conclusion this into North Carolina’s must not enter ness primarily from the face of the drawn process.” Ibid. appellate two-tiered rulings, rein Blackledge Pearce and Blackledge opinion In the course by Supreme forced Court’s latest exami holdings in v. reviewed its Colten the court nation of those authorities Bordenkircher 104, 1953, 92 32 Kentucky, 407 S.Ct. U.S. 357, 663, 98 54 Hayes, v. 434 U.S. S.Ct. Styn- (1973) and Chaffin v. L.Ed.2d 584 L.Ed.2d 604 1977, 17, chcombe, 36 412 U.S. the court had under In Bordenkircher (1972), 714 each of which involved L.Ed.2d Hayes review this court’s decision by attempts a defendant unsuccessful Cowan, 1978), granting greater upon sentence a second have a reason of corpus a writ of habeas of Pearce. aside under the decision set obtaining a su- cutorial vindictiveness the court ob- distinguishing those decisions The perseding indictment. defendant imposed sentence was that in Colten served charged therein had been in a one-count judge so that there was little by a different forgery. He had been ad- “personal vindictiveness” indictment possibility that 240 U.S.,

vised, warned, Perry, Id., at promised, or 417 27 threatened S.Ct. [94 2098]. 362, S.Ct., prosecution p. p. 98 (depending what colora- facts) tion one apply chooses to spoke The Court and further Pearce to save if he “did not the court the intend representing the “imposition necessity of a trial inconvenience and and defendant, penalty” ibid., taking up pleading guilty time” stated: with a for a recommendation emphasized Court has the due five-year would also be charged sentence he in cases such violation as Pearce possible as an habitual and face a offender Perry in the lay possibility life sentence. 547 F.2d 43. He refused be might deterred from the indictment, plead pros- forgery legal right, exercise of a see Colten v. ecution obtained a second indictment add- [, Kentucky, 407 U.S. 104 92 S.Ct. ing the charge, habitual offender and the Chaffin v. 584]; Stynchcombe, L.Ed.2d defendant was convicted on both counts. [, U.S. 17 S.Ct. 36 L.Ed.2d 714], danger but rather in the grant reversed the might retaliating State against corpus, ruling habeas that an increase in lawfully attacking accused for his convic part “give-and-take” as a Perry, tion. supra, See plea bargaining [417 no contained element of [, S.Ct., at 26-28 at retaliation, U.S.] 2101-02]. punishment or that there awas Id., S.Ct., p. p. at advantage” “mutuality of available to each trial, parties regarding avoidance of We believe it be noteworthy in its and that the defendant was because free to quotation references to and from Pearce accept reject prosecution’s offer the and Blackledge majority in Borden adding conduct of the kircher aspects did not refer to the broader more serious not be charge could considered of those rulings earlier regarding the de as vindictive. v. Hayes, Bordenkircher su fendant’s perception ques of the conduct in pra, p. “apprehension S.Ct. 663. While of vindictiveness”. tion — Bordenkircher, pivotal point this is the Blackmun, writing Justice for a three- distinguishes plainly and thus that action on dissent, member majority stated that facts, its we do not believe that we can from, opinion departing “is or re at least ignore the Supreme approach Court’s stricting, principles established in North Blackledge Pearce and therein reason of Pearce, [, Carolina v. 395 U.S. 711 89 S.Ct. (as we urged circumstance have been (1969) 23 L.Ed.2d and in Black 656] do appellees). ledge Perry, [, 417 U.S. 94 S.Ct. Id., 365, 366, (1974).” pp. L.Ed.2d 628] In the opin- course of the Bordenkircher S.Ct., p. 669. believe any We ion the stated: merely restriction is to the limits This Court held in North Carolina v. Blackledge Pearce and were intended [, 725 89 S.Ct. occupy beyond and which they have been 656], L.Ed.2d the Due Process taken in instances many by the lower Clause of Amendment the Fourteenth courts, interpre and that the Bordenkircher “requires against that vindictiveness a tation of and Blackledge Pearce clear is a having successfully at indication to the trial courts doc play tacked his conviction must no first trine developed rulings in those be is to part he in the sentence receives after a scope. confined to its intended principle new trial.” The same later a applied prohibit from There is a significant distinction between reindicting a convicted misdemeanant on the facts of case and those of Pearce felony the defendant Blackledge. a after had In Pearce and remedy, appellate since in this there was a of charges invoked substitution —the part also a “realistic same situation there was likeli conduct on the of the defendant ” Blackledge was the im- hood of ‘vindictiveness.’ basis for diverse sentences ment the mis- for the offense of which the and underlie both defend- posed in Pearce charges Blackledge. felony ant was convicted. demeanor the same conduct is not In this case aIn situation the course of original both the indictment basis for alleged support only criminal conduct will a offenses and the charging the substantive single charge, with the having superseding adding conspir- indictment option charging the defendant under acy conspiracy charge, although count. The provisions different of the law carrying arising pattern from the same total factual penalties. varying The bar of double jeop- arise, which the substantive counts ardy preclude more than one such and distinct offense with ele- separate being charged. judgment offense Once the from those of the substan- ments different is made penal as to which statute is to be Thus, we are here tive counts. concerned invoked the full extent of dis- rather than addition the substitu- cretion has been exercised. charges.5 tion of circumstances, Under either of those ab- The distinction between substitution of explanation encompassing sent an factors charges brings and addition of into unknown or nonexistent at the time the play one of the considerations of the Pearce original fairly decision was made it could decision which has been carried forward assumed that intervening the sole factor ruling In Pearce the into below. Su between such decision and the shift ato preme Court held that in order to vindicate punitive position more defendant’s ex- —the following sentence more severe second protected ercise of a right played part — sentencing judge must do so Hence, the determination. ap- reasonable objective concerning “based on information prehension of the realistic likelihood of vin- part identifiable conduct on the of the de might dictiveness arise. occurring fendant after the time of the 711, 726, 395 U.S. [trial].” regards same cannot be said as addi 2072, 2081, 23 L.Ed.2d 656.6 The District tion of In this when the this, Judge applied a similar limitation in charged defendants were with the two sub ease, holding only exception that the prosecu stantive offenses the full extent of “appearance bar of of vindictiveness” would judgment torial and/or discretion had not be “lack of existence of essential elements possibility been exercised. The of indict of the increased offense at the time of [the] (an conspiracy entirely separate ment for original indictment where govern containing offense essential elements dif ment, own, through no fault of its discovers ferent from those of the of substantive new evidence which it was unaware at remained, fenses) unhampered by any con original time of the charge.” 444 F.2d jeopardy. siderations of double Just inas ruling 1241. We believe that such Bordenkircher Hayes, supra, in which the fails to take into account the difference prosecution initially charging withheld substituting charges adding between directly defendant with an offense related alleged indictment, to that in the initial In a case such as once in this case sentence is had not exhausted imposed sentencing potential charges court has made a its arsenal of with the appropriate final as to the punish- decision initial indictment. respect factually clearly In this this action is closer footnote it was stated “This would be a Hayes, supra, to Bordenkircher v. than it is to different case if the State had shown that it Blackledge. impossible proceed Pearce and was to on the more serious 21, 29, charge at the outset.” 417 2098, 2103, dealing aspect 6. In with this of the in case 40 L.Ed.2d 628. specifi- Court did not cally question address of what circumstanc- 7. It could be said that the defendants’ assertion justify effectively es substitution of a more serious of deprived in case would a constitutional this charge by opportunity reason the fact that there was no to point possibility charges evidence on that in the record. In a use the of added as a “bar- initiated, This subtle but critical distinction be- we would render the charges tween the addition of meaningless every .contrasted cutor’s discretion charges the substitution of has been initially which a in- case in defendant is recognized considering in other cases for less than all his dicted the violations Pearce-Blackledge challenges. spree alleged activity permit. situation, In that a enough it is spoken Fifth Circuit has to this mat- prosecutor, charges who decides to add Doolittle, in Hardwick v. 558 F.2d 292 ter indictment, prior prove did not Walker, that he (1977)and Jackson v. vindictively. act is to be fact The test applied to the rather actions originally Hardwick the defendant was In than the defendant’s reactions. bank robbery indicted and convicted of 292, 302. aggravated policemen assault on three during robbery. the course of the The con- The court ruled that in the circumstances viction was set appeal. aside on Before that case: retrial different obtained a prima While Hardwick has made a facie superseding adding indictment two new by showing case the number of robbery of a bank customer and counts— assault on another charged against crimes him as a result of In individual. consider- he episode doubled after had ing defendant’s motion dismiss the setting original succeeded aside the charges new on the basis of convictions, may rebut this vindictiveness the court focused on the fact prima proof by facie his rea- establishing they were added and not substituted adding charges sons for the two new charges. The court then held: punish were other than to de- pesky Though these latter two events occurred for exercising legal fendant his in the same overall time interval as the Id., p. 301. acts covered indictments, the first two Among “explanations ne- which would they were different and distinct activities gate were “mistake vindictiveness” included subjects and thus were the of discretion oversight the initial action [and] ary prosecutorial up which decisions approach prosecutorial duty different then had not charges been made. These prosecutor.” the successor Ibid. were not harsher variations same Walker, supra, Jackson differs original decision prosecute as in Black Hardwick in Jackson the ledge. . which were added in a follow- reindictment apprehension of vindictiveness which ing same a successful arose from the controlled the decision in had underly basic conduct which effect no discretion be- charges, whereas in Hardwick the added cause there the prosecute decision to Per- facts, upon were based different ry for this very assault on fellow albeit events which occurred in the same prisoner already had been made. On the hand, episode.8 basic to a responding criminal adopt other if we appre- were to Pearce-Blackledge challenge second hension of opposed vindictiveness as vindictiveness in fact indictment Fifth Circuit drew its to be standard Hardwick, judge again making we new clear whether decision in tions for may different criminal activities that the fact that these were rather added gaming chip” plea-bargaining, required oppose virtually in the course of would create a by obtaining as sanctioned Bordenkircher. While courts of a insurmountable obstacle to the government prosecutors often superseding have condemned adding indictment counts those by overindicting, for initially result reached Dis- forth in of set indictment inevitably prosecutors trict could lead scope. reasonable obtaining containing every initial indictments sustain, conceivably count the facts could respect closely In relat- Jackson is more pro- that a of fear defendant’s assertion some ed action. to this government tected which the would be rea- handled the case and filed the informa- called for a than substituted charging tion a misdemeanor. The case application interpretation and soned her, assigned was later and when she Jackson precedents. Supreme Court reviewed the file several weeks before reconsid- action to be remanded the court date, the trial she realized that the facts a “bal- applying court by the district ered adding a felony charge. warranted As of principles from the ancing test” drawn held, Judge Griesa and as the facts ad- in its fully more articulated Hardwick as showed, this a duced at was reasona- involved a “balancing test” opinion. That “ Id., step ble for the to take. appeal’ inter- of the ‘freedom of weighing p. 48. the ‘freedom of against est of defendants prosecutor,” interest of

discretion’ expressed views are and the same Similar recog- a which the court task F.2d Eighth was arrived at result Circuit Id., pp. may complicated one. nized Partyka, in United States v. 561 F.2d 118 145, 149. (1977). In that action within two weeks of Ricard, F.2d 45 In United States prosecution a successful doubled 1977), original- (2nd the defendant charged the number of narcotics offenses taking charged with the misdemeanor ly against rejecting the defendant.9 In from the mail. money orders two books of challenge prosecutorial vindictiveness filing of a motion to Subsequent to the the court held: second indictment contested suppress which was Perry taking away We do not read day after defense and the government prosecutors their traditional and that if the defendant counsel was advised deciding which of proper discretion in superseding indict- plead guilty did charges against a defendant are multiple sought felony count was ment would be they are all prosecuted or whether to be Following conviction added to the . the same time. prosecuted to be Pearce-Blackledge felony count a on the words, we do not think that In other vindictiveness issue was raised moment a Perry given holds that if at a argument the rejecting appeal. to indict a position is in a held: Circuit Second separate felony charges two defendant on argues ac- Appellant charges at the he must indict on both filing superseding indictment tion in to assume same time unless he cares apprehension created the of vindictive- prosecution risk that if a on one ness, accordingly Pearce and efforts, as a result of defense aborts Blackledge require of his convic- reversal guilty it will that he has been be held tion, despite any proof the absence of promptly if he ob- vindictive However, if the motive. even vindictive charge. tains an indictment on the other arguably pose circumstances of this case Id., p. 124. apprehension a realistic likelihood of the bring among authorities relied Primary upon by the play principles upon by appellees of Pearce and and drawn into Judge are the decisions in United Blackledge, no means mandates District Jamison, U.S.App.D.C. Blackledge, in this case States v. reversal. Unlike (D.C.Cir.1974), and justify was able to the 505 F.2d 407 charges brought against ap- Ruesga-Martinez, increase in States 1976).10 rulings attorney originally had Each of those pellant. Another explained of the authorities cited to the failure to in- From examination 9. The into the in the first indictment as an us in this action and further research question pearance clude all identity. appears concept “ap- protect an informant’s From that the effort reading may originate and consider- vindictiveness” a ing facts well identity Ruesga-Martinez was disclosed that the informant’s in the decision. trial, appears excuse to be the first at somewhat tenuous. We distinguishable agreement ap- from the case before us for are in with the basic proach charges both involved substitution of under of the Fifth Circuit to this issue of However, prosecutorial we vindictiveness. jeopardy circumstances where double prefer controlling proposi- to articulate the prosecution bar for the first and second slightly tions in a different fashion.13 charged against offenses the defendants.11 premise proceed The basic must must, however, recognize We proposition primarily from the that we are very those decisions contain broad and with concerned the realistic likelihood of (which strong language could be considered conduct, vindictiveness in the dicta) philo which must be considered as Perry, supra, bearing v. in mind sophically incompatible with our views of that resolution of such issue must take into interpreta Pearce and apprehension account a reasonable of retali placed upon rulings tions those in the other atory part motivation on the of the defend appellate previously decisions reviewed ant, Pearce, supra. North Carolina v. Additionally, herein. the rationale of Rues Proceeding premise, from that if the ga-Martinez together “appearance with its prosecution substitutes charges increasing language of vindictiveness” has been ex potential severity punishment of the tended the Ninth Circuit to invalidate which the exposed, defendant such substi added as well as substituted Unit charges prima tution of creates a facie case DeMarco, (1977); ed States 550 F.8d 1224 vindictiveness which can be Alvarado-Sandoval, United States only showing intervening overcome (1977); Groves, F.2d 645 United States v. circumstances, prosecution of which the ruling 571 F.2d 450. Insofar as the Jamison reasonably could not have been aware cre foregoing and the Ninth Circuit authorities ated a fact situation which did not exist at supportive can be construed as of the view original the time of the indictment. Such a “appearance of vindictiveness” is a places primary standard emphasis on the proper standard under Pearce and Black apprehension retaliatory motivation —the ledge represent interpretation and/or perception of the defendant. differing adopt those authorities from that respectfully ed herein we must decline to If the adds new charges follow Similarly, such decisions.12 we can arising relatively from criminal conduct dis inexperience not concur in the view that underlying original tinct from that acceptable counsel cannot be an excuse for charge the defendant must show actual vin failure to include all in an bringing dictiveness in the of the added indictment, Ruesga-Martinez p. nor charges, although prima may facie case agree events after the initial in made out by the mere fact of the added dispel dictment can be looked to in order to plausible explanation if no is of apprehension vindictive prosecution. fered This standard ness, pp. Jamison at 416-417. prosecutor. focuses on the intent of the originally charged upon conclusion, support In Jamison defendants Jamison in of its degree with second murder were reindicted representative which we consider to be degree following first murder declaration of a application Blackledge. incorrect of Pearce and Ruesga-Martinez mistrial. The Further, viability the continued of Johnson is charged felony provision under a very questionable, as its views of immigration he laws when refused to waive plea bargaining appear discretion vis-a-vis magistrate, having originally trial before a been ruling be inconsistent with the in Bordenkirch- charged applicable with a misdemeanor to the Hayes, supra. er v. entry reentry. same acts of unlawful 13. We believe that the differences are more upon 12. The District also relied substance, matters of semantics than and the Johnson, 1976) States v. probably same results would under both obtain regard of vindictive- approaches. ness. That which involved reindictment plea bargain, heavily failure of a draws and I. possibility, the one The third facts of this concerns pertinent to the very I much do believe that of the a charge new for different the addition of a concept elusive of “vindictiveness” describ- which was different and distinct offense majority opinions ed in the in the Pearce the consequence of same basic and distinct Perry alive after the and cases is still Bor- original charge. the In underlying conduct that broad concept denkircher case. If is event, the added the fact of alive, Keith is Judge still then prima prose facie case of would make out a concept balancing process, requires vindictiveness, prima cutorial but facie I although disagree way with the he subject to rebuttal case would be holds his thumb on the scales while he offering facts evidence of weighs balancing But is unnec- factors. explain ac reasonably justify which or my essary, judgment, because the Su- negate any inference of vin tion taken and preme indicated Bordenkircher This standard takes in fact.14 dictiveness “vindictiveness” concept of ..an- recognition perception of the into both Perry nounced in is Pearce and narrow. prosecutor, of the defendant and the intent if is not satisfied as to and the trial court Pearce, In Court held under substantiality plausibility of the the due clause that a state trial government’s explanation reasonable may judge punishment not double the im- apprehension may vindictive motivation posed first trial when the defendant given controlling weight.15 is reconvicted of the same offense after a In Perry, successful and new trial. Judge’s It clear from the District is the Court after a held that opinion applied which that the standard he appeals tried for and misdemeanor applicable is that we deem to a sub conviction, violates Also, proc- due charges. stitution as previously noted, it whether the ess at the new when he seeks to is not clear District rein- Judge question of the try resolved the credibili felony dict and the defendant for a explanation. We, ty prosecution’s cases, the same In both criminal event. therefore, and remand for reverse redeter problem majority arose because a appropriate mination under the standard as Court, cases, long in a line of has historical- set forth herein. ly protections jeopar- read the of the double

MERRITT, dy narrowly clause to allow the state to Judge, concurring. Circuit “up-the-ante” on a criminal defendant at a I result and concur in the much of the following appeal. new trial In Pearce reasoning Judge opinion Green’s for the Perry, a majority of the Court was opinion attempts Court. Green’s unwilling prior from its retreat double find the concept reasonable limits for jeopardy reinterpret rulings or to dou- “apprehension vindictive- jeopardy along ble clause broader lines ness,” concept whose broad reach is theo- suggested concurring opinions of Jus- retically My view is endless. own that the Douglas tices and Harlan in concept limited even It must be further. 711, 726, S.Ct. L.Ed.2d post-trial prosecutorial should be limited remedy conduct double in order to jeopardy which undermines So wrong, conceptual- values. the Court was forced to peared bringing inexperience of a Inadvertence the record” more wopld range explanations constitutionally permissi be within the serious blunting Hayes Cowan, a claim of vindictive- ble. 547 F.2d 44 — 45 ness. 1978), grounds on other reversed Bor Hayes, supra, denkircher v. it was stated approach 15. This consistent this Court’s may “strong inference” of vindictiveness arise prior regarding questions prosecu decisions unexplained imposition from the of more seri torial In United vindictiveness. States v. Stur ous gill, 1977), it was recognized explanation ap- “a neutral if get put to problem broadly again, ize the under the due the defendant more or him process away longer, clause. It found that “vindictive- the after first trial is over. In state, or the of apprehension ness” the the competitive, adversary environment of retaliation, key principle is the and trial, declined the it criminal is not unnatural for a holding jeopardy to base its on a double prosecutor try dissatisfied to want to the analysis. But the their cases retain double again, precise defendant but is the jeopardy flavor. species jeopar- of vindictiveness the double dy designed prevent. is That clause is Bordenkircher, me, suggests it seems to happened Perry what in Pearce and and Perry that Pearce and are limited to the that, me, only species it seems to is the of jeopardy-type double situation. It is diffi- vindictiveness which the Court cult to case of find clearer “vindictive- struck down in those cases. ness” than Bordenkircher. There the Court simply was faced not with the Bordenkircher, hand, In on the other like prosecutorial of vindictiveness but with the the instant there was no threat of a reality. prosecutor the told trial, any greater pun- second nor of threat fraud, pled he guilty unless he upon reconviction, ishment and jeop- double criminal, would be reindicted as an habitual ardy-type, post-trial vindictiveness did not carrying imprisonment. an offense life Bordenkircher, come play. into In the When the defendant refused to enter such Court regular prosecutorial found that plea, threat, the good made “hard acceptable during nosedness” is the the Supreme upheld and Court habitual preliminary stages and trial of the criminal criminal It argue conviction. is hard to process before double jeopardy values come against Justice Blackmun’s observation in not, play into the end. It is as in dissent Bordenkircher that the “is dissent, Keith suggests plea bargain- from, departing or at least restricting, ing context of Bordenkircher that distin- principles Perry. established” in Pearce and guishes from other “vindictiveness” at 365. claims. jeopardy It the double context of Pearce Perry It difficult to reconcile and that limit and Pearce and Per- control the ry expan- principles Bordenkircher if we take an announced those concept sive view the two of of cases. “vindictiveness” “appearance and the of vindictiveness” an- II. nounced first two cases. But cases more become understandable con- The concept and “vindictive- put concept sistent if gener- we aside “appearance ness” and the of vindictive- al vindictiveness under theoretically ness” is endless and unman- process ageable due elause and look at Pearce and post-convic- unless limited to the Perry process tion, designed pro- due cases Otherwise, jeopardy double context. tect jeopardy post double values involving concept nobody— is so elusive that conviction judge, “vindictiveness.” prosecutor or defendant —can deter- stops. mine where it starts or concept cases, both the state tried to “up-the- appears also competi- inconsistent with the by imposing penalty ante” a harsher tive, adversary pre-trial nature of the appeal. They retrial after both are process. prosecutions cases of successive for Except very By same criminal event. necessity public prosecutor must broad due positions contrary “vindictiveness” lan- take liberty hard guage Court, used the two cases fit society interests the accused. Our mold, for, jeopardy jurisprudence much better the double our have never reached all, jeopardy after agreement the double clause was purpose whether the designed part species penal system deter, restrain a certain is to treat or to vindictiveness, avenge. the kind he Whether is motivated deter- that leads a vengeance complicat- dissatisfied to want or more rence some mind, “appearance pros- general absence of explicable state less ed but vindictiveness” in the heat of bat- ecutorial toward the defendant attitude goal adversary unworkable in our tle is an case is seldom hard-fought criminal system. or neutral. benign process, and trial During pre-trial HI. position what must decide reasons, For these I would hold variety procedural, an endless take on proscribed by kind of vindictive behavior ques- and tactical evidentiary, substantive clause relates to double the due discovery, agree to to may He refuse tions. concept jeopardy values and bail, severance, bargaining, the exclu- plea after prosecutorial vindictiveness limited to courtroom; he witnesses from sion of is over. That means that in the first trial prior criminal get to into evidence may try was no unconstitu- the instant case there other, co-conspirator and or various conduct prosecutorial tional behavior. in his may he be harsh hearsay; kinds of conduct of the defendant’s characterization KEITH, Judge, dissenting. Circuit may probation recommend jury; he law, system Under our altogether; or he prosecute to or refuse largely power has awesome because of a co-defendant in may make a deal with discretionary authority unreviewable incriminating testimony and exchange for Hayes, Bordenkircher v. bring charges. See on and on. 364, 663, 357, 54 L.Ed.2d 434 98 S.Ct. U.S. demonstrate, following questions in Cowan, (1978); 524 604 United States v. mind, unmanageability of the vin- my 1975), cert. denied sub F.2d 504 trial context: concept in the dictiveness States, v. 425 nom. Woodruff U.S. successfully a defendant has asserted Once 971, 2168, (1976). 48 L.Ed.2d 795 96 S.Ct. legal right in the course of particular possess as power all the theoretical we For process, prosecutor guilty is a criminal case judges, federal it is in an unusual conduct, which unconstitutional vindictive step can in and curb a dubious that we legal right as- “chills” the exercise of Boles, Oyler v. 368 U.S. prosecution. See serted, prosecutor thereafter each time the 448, 501, (1962); 7 L.Ed.2d 446 82 S.Ct. the interests of position contrary takes a Platt, Inc., Leggett v. United States not, not, why and what the defendant? If 655, 1976), cert. 658 de the standard of measurement? What 945, 1579, nied, 51 L.Ed.2d 430 97 S.Ct. U.S. difference does it make noted in 792 As the place conduct took after rather than tor’s 277, Dotterweich, v. 320 U.S. right? before the defendant asserted the 285, 134, 138, (1943), 88 L.Ed. 48 legal right The “exercise” of a can be more justice necessarily system of criminal “[o]ur effectively “chilled” before it is asserted circumspection depends on conscience and ” after. What difference should it make than prosecuting in officers . . that the defendant was unsuccessful rather prosecutorial One of the few controls asserting legal right? than successful rule in Black discretion is the enunciated any facts would it make On the 2098, 21, ledge Perry, 417 94 40 U.S. S.Ct. lost his mo- difference defendant (1974). The defendant L.Ed.2d 628 tion for bail rather than won it? If we are Blackledge was convicted on a misdemeanor talking legal “exercise” of a about When he assault in state court. any right, it should not make difference statutory right appeal to a exercised his happened its exercise to be unsuccess- novo, prosecutor obtained a trial de particular ful in the case. covering the same felony indictment assault constitutional,

Many common law and ev- held that since the conduct. The Court protect the accused identiary principles “a considerable stake” had raised a given expansive meaning. deterring appeals, his action should be vindictiveness spectre require, general principle, But to as a 248 squared proc- successfully

which could not be due won new trial bringing appeal, impermissible ess. The state was barred was for the trial charge. judge heavier on retrial to resentence him to a stiffer absent findings term on-the-record Blackledge’s proscription previously based on facts.1 unknown followed the rule down laid 711, provide in North Carolina v. 395 These U.S. authorities a sound ration- (1969) relating 656 ale court police S.Ct. L.Ed.2d for a judicial Today, If a my colleagues interpret vindictiveness. convicted abuse.2 Kentucky, surprising anyone 1. See also Colten v. 407 U.S. our familiar with criminal (1972) (where justice system. eager-to-convict prosecutor S.Ct. L.Ed.2d 584 in- An imposed by every creased sentence was keeping different has reason favor a defendant novo, judge possibility after to a de jail pending jailed A trial. defendant has minimal); of vindictiveness difficulty Chaffin great cooperating attorney with his Stynchcombe, S.Ct. building a defense. Incarcerated defendants (1972) (minimal possibility L.Ed.2d 714 of vin- pressure plea-bargain. are under more Fur- jury imposed dictiveness where different stiffer ther, eyes maliciously in the of a vindictive retrial). on sentence prosecutor ant, punishing who is bent on a defend- There exists some tension between jail spent awaiting great in time trial offers Chaffin, Colten and as is inevitable when a satisfaction, ultimately even if the defendant is try subjec court formulates rules to to control acquitted. Doolittle, tive behavior. See Hardwick 558 The of facts this case a demonstrate 292, 1977), denied, F.2d U.S. cert. granting tor’s considerable stake in the or deni- (1978). 98 S.Ct. 54 L.Ed.2d 801 al of bail to criminal After defendants. Nonetheless, emerges lesson that “[t]he from Brooks, arrest of Thurston Tallice Andrews and Pearce, Colten, and is that Chaffin the Due Braswell, Fannie Fannie Braswell turned state’s by possi Clause Process is not offended all against testify evidence and offered to her two punishment upon bilities after increased retrial A co-defendants. confidential informant told appeal, only by pose but those that a Attorney the assistant U.S. defendants realistic likelihood of vindictiveness.” Black bodily had threatened Ms. Braswell with harm. Perry, 21, 27, ledge 94 S.Ct. response government placed Ms. Bras- 40 L.Ed.2d 628 custody well in the of the Federal Witness protection program strenuously argued and my colleagues Neither addresses the Magistrate both the and the district court that government’s arguments threshold that Black the defendants should not It is difficult to released be on bail. ledge Judge completely inapplicable should be here. imagine a in which opinion case rejects implicitly Green’s these deterring stake in the exercise of a apply claims since he does a form of Black- right clearly presented. is analysis. more ledge agree government’s I that the government’s attempt Blackledge The arguments to limit are frivolous and that this case must involving analyzed situations a full Blackledge. retrial has no basis under logic. prosecutor in always it is While true that a government Blackledge The claims is avoiding has a in considerable stake inapplicable on the this facts of case and ad- trial, prosecutor cost and inconvenience of a arguments First, support. vances three in often has a similar exercise of Constitutional or motivation deter the government asserts that what occurred here statutory rights possi- was so trivial that there existed no real something where other full bility rectly than a retrial is government of vindictiveness. The cor- involved. right To extent that the exercise of only Blackledge applies states that where way some decreases the likelihood of has a “considerable stake” in prosecutor’s job conviction or makes a deterring more right. the exercise of an established burdensome, government has incentive to The it contends that does not have right. deter chilling the exercise of that such a considerable stake in a defend- recognize may I right that there exist ant’s to seek situations admittance to bail. It bases argument where a court could hearing this on find that a the notion that a bail was utterly expenditure uninterested whether does not involve a burdensome prosecutorial resources, However, potential released bail. there would nor the be a re- government lease of a would clear record of this convicted felon. The in that the Blackledge opposed place. have us restrict not have bail in the first rule to government’s argument cases where the ant carries the The exercised second is that it defend- potential charge, for retrial. did not substitute a more severe government’s argument prosecutors Blackledge; merely occurred in it added the conspiracy charge. are much why concerned whether extra defendants I do not see are any released bail can be described as distinction should make difference. As conviction, re- first due also narrowly the those decisions principles ap- quires vital con- that a defendant be freed of severely a needed and limit and retaliatory prehension of such motiva- Because I prosecutorial discretion. trol on abject part sentencing judge.” tion on the my colleagues’ agree with cannot U.S., [, 2072], We use of at potentially abusive capitulation think clear that the same respectfully I dissent. it considera- power, apply person tions here. A convicted Vindictiveness —The I Prosecutorial pursue an offense is entitled to his statu- Problem novo, to a trial de tory right without gen for the Pearce and stand will apprehension that retaliate State conduct proposition that vindictive eral substituting serious more power judges awesome persons one, subjecting to a thus him juris prosecutors unacceptable in our and is significantly potential period increased However, system. there is no prudential incarceration. vindictiveness,3 the ap show need to actual which underlie the Pearce concepts prima facie of vindictiveness pearance then, decisions, 1) are fore- Black As the Court noted sufficient. stalling behavior, actually vindictive be- ledge, supra, at 417 U.S. S.Ct. 2) morally ensuring wrong4 cause 2102: of vindictive behavior judgment our The rationale of does not deter criminal defendants however, Pearce grounded was not exercising Applying their these proposition actual retaliato- situations, concepts varying the Supreme inevitably must ry motivation exist. “prophylactic Court has determined what Rather, emphasized we that “since the 5 any, applied. need rule” if be may of vindictiveness unconsti- fear Pearce, supra, tutionally a defendant’s exercise of In a imposed deter the Court right collaterally judge justify requirement the attack two-fold on a Sturgill, sought grand jury cutor this court noted in United States v. 563 also received—a —and (6th 1977), question important greater the F.2d 307 Cir. indictment for a when the de- offense subject possi whether a is bility defendant right to a fendant exercised his new trial. punishment. of This is what Thus, enhanced rejects implicitly govern- the prosecutor motivates the vindictive the defendant’s exercise and chills argument ment’s as well. rights. See his Mir 1269, (5th Estelle, v. 1275-76 acle 592 F.2d Cir. By I do not mean that “actual vindictiveness” Walker, 139, 1979); v. F.2d 146 Jackson 585 Rather, prosecutor the is motivated malice. Jamison, (5th 1978); United v. 164 Cir. States prosecutor I mean the is motivated 300, 308, 407, (D.C. U.S.App.D.C. 415 against pesky desire retaliate 1974). Cir. making job who is the former’s more difficult government thirdly argues that the The dan- for him/her. ger is minimized bar, at court did not the case the district independent grand presence of an here question prosecutor’s integrity or motiva- misperceives Blackledge. jury. argument This tion. 1 have no reason to do so. On the con- trary, jury grand did All that here was determine high regard I have for probable whether there was charges. charges cause Attorney’s and the U.S. for which she Office grand jury why did not address works. brought bringing were or whether the of cising grand would deter defendants exer- Pearce, 711, See 395 North Carolina v. U.S. Further, their the notion that a check on a 723-24, 2072, (1969). 89 S.Ct. 23 L.Ed.2d 656 jury operates significant as Compare 738-39, (Opinion id. at S.Ct. 2072 Although 89 prosecutor is rather remarkable. Black, J.). Although “runaway” grand jury this view based on in is not unknown our “fairness,” history, anyone any knowledge of our Aristotelian Kantian notions juries justice system grand might uphold criminal routinely knows that one that it serves to add also prose- prose- system eyes return whatever indictment the legitimacy requests. the grand jury proceedings cutor cutor Given fact that public justified and thus can under utilitari- orchestrates analysis well. as opposing attorneys and that no are allowed to them, any participate result would be other Kentucky, 104, 116, U.S. 92 5. Colten v. 407 Blackledge itself, surprising. I note that 1953, (1972). L.Ed.2d S.Ct. 32 584 2098, supra, 417 U.S. at 94 S.Ct. 250 that, First, resentencing. “Immaterial due to a failure of com seemingly vindictive showing office, an on-the-record

there must be munication within the the assistant judge increased the sentence the why the Attorney initially appeared who U.S. Second, the reasons second time around. personally prior] aware of [defendant’s sentence “must be based for the increased record.”); DeMarco, v. 550 States objective concerning information iden- denied, (9th Cir.) 434 F.2d 1224 cert. U.S. part tifiable conduct on the of the defend- (1977) (pre L.Ed.2d occurring time ant after the sumption arose when defendant insisted on Id., sentencing proceeding.” 395 U.S. at statutory rights); venue 726, 89 at 2081.6 S.Ct. Ruesga-Martinez, (9th F.2d Cir. problem Blackledge, is that 1976) (“heavy offsetting pre burden” of Court did not indicate what formal stan- sumptive prosecutorial vindictiveness not applied seemingly dard was to be to test by showing prosecutor’s inexperi offset prosecutor. vindictive conduct of a Analo- ence). gizing urge defendants that in a The Fifth Circuit has ruled in one case this, case such conduct be deemed to prima-facie presumption that a of vindic new, have been vindictive unless there are prosecutor apparent tiveness arises when a why after-the-fact reasons on the record ly acts to chill the exercise of a prosecutor “upped the ante.” The dispelled can be if the give can government’s view is non-vindictive reasons for his conduct. applied gingerly (if all) should be Doolittle, Hardwick pre-trial situations and that it should be , 1977) denied, cert. S.Ct. able to advance reasons such as inadvert- 54 L.Ed.2d 801 Hardwick's con neglect justify ence and its conduct. The cern over the existence of actual vindictive majority opinions adopt more or less ness should be contrasted with the balanc government’s position. ing Walker, test advanced in Jackson v. appeals The other courts of which have 1978) F.2d 139 where the court considered this issue have varying advanced deciding stated that: “In whether to re standards. The Ninth Circuit has ruled quire showing of actual vindictiveness or that where a increases merely a showing apprehen of reasonable charges apparent response to the defend- vindictiveness, sion of a weigh court must ant’s procedural right, exercise of a the extent to which allowing the second prosecutor “heavy bears a burden” of dis- indictment will chill the exercise of pelling presumption the resultant of vindic- appeal rights against defendant’s the ex dispel appear- tiveness. It is vital to tent to which forbidding the second indict ance of vindictiveness as well as actual vin- infringe ment will on the exercise of the Groves, dictiveness. See United States v. prosecutor’s independent discretion.” Id. at (9th 1978) 571 F.2d (presumption 450 Cir. Thomas, 145. also See United States v. 593 prosecutor brought arose when added 615, (5th 1979); F.2d 624 Cir. Miracle v. charges response to defendant’s motion Estelle, (5th 1979). 592 F.2d 1269 Cir. statutory to dismiss on speedy trial appeals other courts of specifically have not grounds); v. United States Alvarado-San- doval, (9th requirements articulated the 1977) dispelling 557 F.2d 645 for (pre- Cir. sumption appearance of arose when defendant refused vindictive plead charge to misdemeanor ness but have dealt with indicated the issue on an ad pre-trial motions would be raised. hoc basis.7 Compare Johnson, 6. Justice White’s view that would 7. See United States v. 1170 F.2d (4th 1976) (Defendant successfully “authorize an increased sentence on retrial Cir. over- any objective, guilty plea appeal. Appeals based on identifiable factual data turned Court of judge accepted prosecutor’s explanation not known to the trial at the time of the in- original sentencing proceeding.” charges North creased Caroli- on remand for trial were added 751, supra simply stronger govern- na v. at to create 89 S.Ct. a case for the dealing ment is over with situations where prosecutorial vindictiveness Questions of appearance is an of vindictiveness have there resolve. Courts easy to Some are not viewpoint, a defendant’s but where actual retalia- from the need to deter emphasized v. Doo- appearance strong9 is not or where the e. Hardwick vindictiveness, g. tory simply made an honest mistake. prosecutor have em- little, supra; courts other while cases, strong exists the coun- appearance In those there to avoid the the need phasized leeway tervailing policy giving from of deters others which of vindictiveness United States letting discretion and a rights, g. e. cutorial exercising their probable where there exists Ruesga-Martinez, supra. bring The first view v. violated the law. pre- cause that the defendant the moral consideration emphasizes retaliating be- from venting complicating An additional factor is the on his insists a troublesome cause vindictiveness, difficulty showing actual emphasizes The second view rights. pros- which involves a determination preventing other defendants necessity of is the state of mind. Rare ecutor’s exercising being apprehensive about openly will admit that he added on tor who statutory or constitutional against the defend- in retaliation it is clear that retaliato- agreement in the ant. Sometimes is universal There basis for a ry vindictive- motive is the finding of actual courts that actions,10 just clear that imposition as it is sometimes immediate warrants ness even an Blackledge’s proscriptions.8 disagree- there does not exist ment, apprehen violation even when the admitted held that the defendant’s but bar I was sufficient that he acted out of vindictiveness. As will sion of vindictiveness Ricard, (2d them); below, however, States v. 563 F.2d 45 United I think that Borden- discuss 1977) (apprehension vin presents unique Cir. kircher factual situation successfully by showing rebutted dictiveness inapplicable here. which Attorney reviewed the that a different U.S. trial and made the determination case before Ricard, 45, See, g. United v. 563 F.2d e. States warranted); augmented charges were (2d 1977) (prosecutor brought stiffer Cir. Partyka, (8th States v. 561 F.2d Cir. United superseding indictment after conversation 1977) (any fear rebutted be of vindictiveness in which the latter indi- with defense counsel of conviction on dis cause reversal prepared go that the defendant was cated identity informant’s and thus removed closed questioned whether this was trial. Court seeking government’s reason not earlier vindictiveness). enough to raise a likelihood charges); on stiffer Walker, 585 F.2d 146- also Jackson v. See Preciado-Gomez, (9th Cir.) cert. 1978) (overall circumstances denied, 425 U.S. 48 L.Ed.2d presented likelihood of a “remote” the case conduct, (1976) (defendant’s overall vindictiveness). an increased after a lead to declared, mistrial was fully prosecu was not known Cowan, g. Hayes e. 10. See declared); after mistrial was tor until 1976), sub nom. rev’d n.2 and 45 Jamison, U.S.App.D.C. States v. 164 505 357, Hayes, 98 S.Ct. v. 434 Bordenkircher 1974) (D.C. (increase charges F.2d 407 Cir. in 663, (1978) (prosecutor admit- 54 L.Ed.2d 604 justified by intervening could be discovery events or motive). also North Caroli- ted vindictive See govern of new of which evidence 726, 711, 715, 89 S.Ct. 395 U.S. excusably na v. ment was unaware. Court did not 2072, (1969) (district court had definitively 23 L.Ed.2d 656 anticipate undertake “to all those “inescapable” that state might thought found the conclusion circumstances which to war prosecutor’s judge in retaliation sentence had increased rant a dictment”). escalation of an initial in appeal); United States for an initial successful (6th McFadyen-Snider, Cir. F.2d 654 590 v. Estelle, (5th 8. See Miracle v. 592 F.2d 1269 Cir. probably 1979) (perjury not indictment would (“. 1979) always . vindictiveness is an brought succeed- been had defendant have illegitimate consideration in deci conviction); initial in her from an ed Doolittle, sionmaking”); Hardwick v. 450, Groves, (9th F.2d United States v. 292, denied, (5th 1977), 299-300 Cir. cert. inescapable 1978) (“The on is conclusion Cir. (1978) U.S. (vindictiveness 98 S.Ct. 54 L.Ed.2d 801 brought government this record that improper is an factor in the appel- charge marijuana for the in retaliation prosecutorial process). In Bordenkircher v. statutory rights on his lant’s exercise of Hayes, 434 U.S. 54 L.Ed.2d charge.”) cocaine (1978), the Court found no due prosecutor infringes prosecutor’s when a added dictment

vindictiveness case,' however, typical is in charging authority. charges.11 The If the balance falls in prosecutor’s defendant, extremes. A ac govern- favor then the between these vindictive, prose heavy but appear will ment would have the burden of off- tions setting appearance inadvertence or mistake. cutor will claim of vindictiveness. If explanations every case is reject government these the balance favors To then deeply into discre there would a prima-facie to intrude arise case of vin- Yet, ready acceptance glib prosecu dictiveness, but tion. all the need do seeking of heavi explanations provide explanations torial neutral to demon- mockery not, fact, make a of Black strate that it act er could did vindictive- on the to thwart ledge, ly- which focused need of vindictiveness and the appearance balancing approach great makes a on other chill defendants’ exer concomitant deal sense when one realizes that there below, rights. explain As I will cise of their degrees are of apparent what precisely wrong my

this is which have varying effects defendants colleagues’ views. propensity and their their to exercise II Prosecutorial Vindictiveness —A Thus, augment if to seeks Suggested Approach charges when a defendant exercised his novo, right trial de as occurred in adopt an balancing overall test I would Blackledge, appearance of vindictive- balancing test somewhat similar ad- great ness is so no explanation almost Walker, in Jackson v. vanced 585 U.S. will justify hand, it.12 On other if a (5th 1978) providing resolu- Cir. best superseding seeks a indictment these difficulties. A tion of court should on retrial which charge substitutes lesser aas threshold first decide matter whether a happens carry greater potential which prosecutor’s seeking action in a heavier term, prison of vindictive- appears second indictment to be vindictive. certainly exists, ness appre- but defendants’ so, If the court should examine the facts great.13 hension not be vindictiveness will weigh allowing the extent to which Walker, v. supra. See Jackson second indictment will chill defendant’s ex- question ercise of the with the balancing approach also takes into forbidding extent to which second in- varying degrees account in- Estelle, Chapman (5th 11. Anderson, See v. (7th 593 F.2d 687 United States v. 514 F.2d 583 1979) (defendant having 1975) (defendant Cir. plead succeeded in agreed guilty Cir. bargain-for plea guilty exchange set aside. Prosecutor lowering charges against for a bargain brought refused to plea aside, further en bargain When him. set hanced Not vindictive for reinstated.) were plea bargain to refuse to reoffer same gotten aside); defendant had set Blackledge itself, indicated Snell, (9th 1979) (substi 592 F.2d 1083 Cir. previously had state shown that been it had sentence); tuted carried same maximum impossible proceed on the more serious Thurnhuber, United States v. 572 F.2d 1307 charge, problem then no vindictiveness (9th (where 1977) mistrial was declared Blackledge, supra, See exist. 417 U.S. at 21 n. judge, adding the trial action S.Ct. charges prior additional to retrial was not vin response dictive since was not done in approach 13. This is akin that used in procedural right). defendant’s assertion of a McFadyen-Snider, States Estelle, Martinez v. 527 F.2d 1330 There, 1979). Cir. this affirmed a court factual 1976) (defendant agreed jury to waive a trial in bringing perjury determination that of a exchange prosecutor’s for a waiver of habitual indictment after a successful had the offender count and of a recommendation punishing exercising effect the defendant for year sentence the event of conviction. Con rights. her 15-year resulted, viction and sentence but re case, In that the factual determination was where, appeal. versed on No vindictiveness prosecutor actual one of vindictiveness —the retrial, defendant was convicted and sentenced probably brought perjury would not have original, rejecting stiffer after charge appeal. had the her agreement defendant lost earlier); same he had been offered prosecutor government’s “heavy a should ficient to meet the example, terest. For greater augment charges dispelling appearance latitude to burden” of of vin- have Applying balancing acts dealing multiple when with criminal or dictiveness. overall Walker, spree, supra opinion, agree see Jackson v. test I advance in this I with a crime 145-46; Doolittle, court.15 585 F.2d at Hardwick v. the district supra 558 F.2d at than when he is Applying balancing test advanced in dealing single with a criminal act. See dissent, this I think it clear that these Estelle, supra Miracle v. 592 F.2d at 1276. facts, chilling effect on defendant’s Similarly, prosecutor a should have broader outweighed freedom to seek release on bail leeway to add before an initial trial give prosecutors the need to freedom to a is to than in a case where prosecute. decide whom to The critical fac- tried a second time. See States government tor in this case was that the Thomas, supra 593 F.2d at 624. In each strongly opposed release defendants’ case, a there would be factual determina- Despite bail. the fact that defendants were made, necessarily tion to be on an ad hoc arrested in November of 1975 and indicted basis.14 only after in November of it was

Ill The Instant Case successfully appealed defendants their bail magistrate from the determination correctly In this the district court January district court in of 1977 that the made the threshold determination that the conspiracy added the In count. government’s seeking of an additional involved; addition, spree no crime was hotly after the defendants “won” a charge encompass- added extra implicated analysis contested bail motion ing underlying the same conduct. These Blackledge. government sought under strong create appearance circumstances a way to show that the it reason acted strikingly of vindictiveness similar to that did was Attorney the Assistant U.S. appeal- the defendant where inexperienced conspiracy and that the Concomitantly, ed de novo. count would have been added earlier but is to strong inevitable effect this create a beyond for factors her control—an office apprehension among of vindictiveness other grand jury moratorium on indictments be- in the same defendants situation. legal challenges cause of grand jury com- position, grand jury during recess the new government’s I recognize that the inter- year’s holidays preemption grand of her having charging est broad discretion in a jury time Assistant Senior U.S. Attor- pretrial situation such as this one is sub- ney. Relying on United v. De Mar- presents States This case an instance stantial. co, supra Ruesga-Mar- and United application balancing States where test re- tinez, supra, strong the district court veals defendant’s interest and both concluded explanations facially strong prosecutor’s these were insuf- interest.16 On these Obviously, length potential offsetting of additional burden of of vindic- significant incarceration is a factor in determin- tiveness. ing the extent to which the con- disagree type I with notion this duct chilled defendants in the exercise their explanation required in all Should cases. Sturgill, Cf. United States v. 563 F.2d application balancing test I advance in (6th 1977). Cir. presumption this dissent result in a of actual vindictiveness, explanations then neutral suggested 15. The district court two as those advanced this explanations apparently for vindictive behavior suffice, credited, case if offset 1) would suffice in all lack of cases: existence Doolittle, presumption. See su- Hardwick v. of essential elements the increased offense at pra, 558 F.2d at 301. indictment; 2) the time of the dis- Estelle, covery govern- of new evidence of which the 16. Contrast Miracle v. 592 F.2d 1979) (substantial previously ment was unaware. See 444 defendant’s interest addition, F.Supp. agree at 1244. I interest. the district court and weak try conduct.); type objective explanation explain Jack- is what state did not its Walker, 1978) required heavy son v. meet

facts, punishment I think that the balance should be such element of or retaliation defendant; the ap- struck in favor of so long accept as accused is free or pearance simply of vindictiveness was too reject prosecution’s offer.” at 434 U.S. which great. Accordingly, the test Indeed, at 668. the Court dispelling meet government should is “We stated that hold that the course of and not appearance of vindictiveness engaged conduct in in offsetting lesser standard of an inference of openly case which no more than actual vindictiveness.17 presented the unpleas- defendant with the forgoing ant alternatives of or facing agree I with the district court that subject on which he plainly government’s proffered explanations, are prosecution, did not violate the Due Process dispel the apprehension insufficient of Clause of Fourteenth Amendment.” vindictiveness which resulted here.18 I do at U.S. at 669. S.Ct. that not think defendants should have to worry a bail successful of mo- presents Bordenkircher a case where the facing will tion result additional their vindictively, acted but where an independent ability factor —the defendant’s Colleagues The of My

IV Views any prob- due process choose—eliminated lems. The Court was careful to contrast colleagues My separate have written two the give plea and take of bargaining with opinions in this case. Their views on the imposition “unilateral of penalty quite vindictiveness issue are a defendant who had chosen to exercise a from Unfortunately different mine. legal right.” at 98 S.Ct. at circuit, the law of this opinions each of their unquestionably It is true that there cannot be reconciled the other. exists tension between Bordenkircher and premise underlying A fundamental both However, I Blackledge. would take Justice colleagues’ opinions my Borden- Stewart at word and limit Bordenkirch- Hayes, kircher v. 434 U.S. S.Ct. er to pending guidance its facts further (1978) significantly 54 L.Ed.2d 604 limits Supreme Court. Perry. Indeed, Judge Merritt Although Judge Merritt seems to think position takes Bordenkircher effec- Bordenkircher, misperceived I have tively I Blackledge. overrules I cannot opposite think that agree. my Both true. No other colleagues fall into the court trap relying hyperbole has advanced the view that Borden on in the dissent Blackledge. kircher limits danger relying in Bordenkircher. The Some courts Supreme have Court dissents not even bothered cite should obvious. Bordenkirch I er language majori- discussing prosecutorial would look to the when vindictive ty opinion in ness empha- plea Bordenkircher which issues outside bargaining context, Walker, g., sizes the limited nature of the Court’s supra. hold- e. Jackson v. ing. spoke length plea Those courts which have cited Bordenkirch bargaining and idea that “there is no er have advanced the view I hold. (“. very public .a limited due interest vindictive behavior —that against moderately weighty prose- Further, place. any balanced cutorial signifi- takes doI not see independence interest.”) cant difference between defendant’s interest being released on bail and a defendant’s argued also that a defend- having interest in appeal his conviction reversed on getting ant is so interested out bail that (Pearce) securing de or a trial novo seemingly even vindictive increase in (Blackledge). would not deter the exercise that thus only finding of actual vindictiveness try think, prosecutor Blackledge 18. The did not required. should be However, justify his conduct. I do not complex subjective Given nature of that the ferently Court would have ruled dif- deterrence, it cannot be said that no deterrent had the advanced reasons results in effect situations such this. inexperience neglect. such as addition, independent there exists value to min- imizing perception of defendants—and the Walker, supra; v. reality he Jones, in Jackson F.2d v. See Judge breaks v. does no thing. Green States 1978); n. 2 into three factu- issues 1978). down vindictiveness Groves, (9th Cir. 571 F.2d 2) charges, 1) substitution of Solem, al situations: also Watkins See spree in a crime situa- addition of 1978) (Bordenkircher holding tion, charges for the same 3) addition of Smaltz, Due generally See narrow”). “very here). (the He acts situation basic criminal Prosecutorial Discre- Process Limitations # Re- charges in situation l.19 would bar : Pearce to Defendants Re-Charging tion however, he # 2 or # garding situations Bordenkircher, 36 Wash & Blackledge prima-facie vin- mechanically apply would Lee L.Rev. test, government and allow dictiveness limiting Bordenkircher its Instead of explanations such as in- glib with to rebut would, colleagues have seized facts, my as I mistake in all cases.20 advertence or limit upon that decision approach is that problem The with this my Pearce to their facts. I think that Blackledge’s underlying concern ignores unsound, both as a views are colleagues vindic- appearance with the and as a matter precedent matter of chilling effect on tiveness and concomitant so opinions their are policy. Because public simply gives It too much def- defendants.21 different, separately. will discuss them I most prosecutorial discretion in erence to effectively limits situations and

A. facts. to its narrow adopt Judge purports Although Green making Judge artifi- one I ad- Instead of Green’s balancing test similar to the distinctions, pros- recognize I Goldberg cial Judge one advanced vance or the knowledge government’s part legal Judge or agree that in situation I with Green impossibility. propose government stan- the sev- I thus a two-tiered where the increased # charges arising single erity from a crimi- dard. The first tier is identical to the standard act, Blackledge applies. by in terms of the Put nal used the Fifth Circuit in Hardwick. advance, balancing I test used tier is identical to standard second very strong govern- and the vindictiveness is ment’s interest is Judge affirm the district Ninth Circuit. I would slight. agree I also with balancing application of test because court explanations such as inad- Green application should result in standard, of the more severe neglect never can be sufficient vertence or government meet. which the cannot justify government’s a situ- conduct in such situation, only informa- why Judge In such a new ation. tion or fy is concerned 21. I fail to see Green justi- previous legal impossibility should “appearance phrase of vindictiveness.” charges. increasing the cases with The fact that the Ninth Circuit disagrees Judge also use this ex which pression Green Thus, although purporting to follow Jackson (I note should not make it unsuitable. Walker, Green, reality, extends the Jackson, expression was also used in that this all of Hardwick v. Doolittle to lenient standard fact situations posed 144). As I read Pearce and Black 585 F.2d at (as op- involving the addition 1) forestalling ledge they are concerned: with substitution) actually which is vindic behavior contrast, balancing test I would extend the tive; 2) ensuring behav Walker, Under of Jackson v. to all situations. (even appears if it’s to be vindictive ior really not) my approach, suggested a district court would apprehension not create an does prosecu- competing balance the interest of vindictiveness which deters defendants exercising defendant in all cases to arrive at tor and the one of two standard, Supreme rights. The their possible standards. Under the first phrase “appre Blackledge specifically used the prima-facie case of vindictiveness “ap phrase hension” of vindictiveness. pearance easily offset if the arises which can useful because it of vindictiveness” is really wasn’t the court that he tor convinces retaliating against distinguish where actual situations serves Explanations defendant. Bordenkircher, occurred, as in inexperience fine. or are such as inadvertence that the situations where no one claims from prosecutor it, standard, phrased I Under the alternate real in bad faith. I see no acted any “appearance must offset the of vindictiveness.” To do phrase expressions difference between that this, explanations charges,” “unexplained addition of such as inexperience are such as inadvertence or language of defendants’ Court’s only acceptable explanations are fine. The “apprehension vindictiveness.” court, lack of those advanced the district nothing good “regular ecutorial interest in situations # # 2 and 3 more than old weigh against and it the defendant’s inter- cutorial hard nosedness.” settings. est different fact That is a true only Judge benignly, Not does Merritt balancing gives proper test and weight to approve “regular prosecutorial hard nosed- prosecutors’ both defendants’ and interests. ness,” deathly he lives in inter- fear that to The facts of this case illustrate how tenu- prosecutor’s decisionmaking fere with a is Judge ous really Green’s distinctions are. “unmanageable” Judge and “unworkable.” prosecutor Because only added a con- opinion Merritt’s mystical accords almost spiracy count, government he allows the discretion, prosecutorial deference to yet explanations advance such as inadvertence policy arguments advances no support neglect prima and to rebut a facie case of view, position. my this In there are com- vindictiveness. Had the substi- pelling reject reasons to it. charge, tuted a more severe Judge Green per would bar it. I do not think that this se only why prosecutorial reason vindic- Instead, distinction is warranted. I would problems place tiveness exist in the first is look to all of the circumstances. As I have bungled that the office things. indicated, previously prose- what made the why There is no reason the defendants apparently cutor’s conduct so vindictive charged could not have been with all of- timing here is the of the addition of very beginning.23 fenses from the aWhere charges, immediately government after the prosecutor makes a reasoned decision to hard-fought lost a bail motion. It is the bring certain charges beginning, in the high chilling effect of this conduct which any question there never exists of vindic- barring should result in a charge. only tiveness. It is when a whether the substi- adding charges starts later on that could tuted or added the not very is im- brought have been earlier that vindictive- Yet, portant. view, Judge under Green’s it questions ness arise. Since vindictiveness dispositive.22 is up issues come if a does not job do right place, in the first I see no B. carefully reason not to examine them. To Judge opinion Merritt’s is certainly opposite approach (that take the Judge unique. position His is that no matter why Merritt) completely is to abdicate prose- prosecutor brings charges, added there is cutorial discretion. I do not think that our problem no of vindictiveness unless a second system justice of criminal should tolerate implicated. trial is Assume that a Judge abuse which Mer- defendant, openly tor threatens a in ad- ritt’s views person may would facilitate. A vance, charges with more if the defendant prosecuted reasons, many be for brings a but he motion for bail or exercises some procedural involving other should never have to face added Judge Merritt, trial. why, second To this is because he exercised his Curiously, Judge problem prosecuto- Green does not cite United have commented on the McFadyen-Snider, States v. overcharging possible consequence rial as a 1979) bringing judicial where this court barred the stringent ques- views of vindictiveness perjury finding of a indictment on a Ideally, prosecutor, tions. a reasonable aware probably brought would not have been had the charging authority, of his awesome will make a separate defendant not been successful in a judgment careful of what should be appeal. Judge Green’s narrow view of brought against given defendant. Unfortu- cutorial vindictiveness difficult to reconcile nately, reality decision- Also, McFadyen-Snider. with I would accord making is far removed from this ideal scenario. significance vague no dicta large overcharging Given the amount of which Sturgill, States v. now, goes danger 1 see little it will 1977). firmly dealing increase if we act when with vindictiveness issues. Green, Judge p. 23. Both ante at 241 n. 7 and below, Judge F.Supp. Pratt at 1243 n. 4 leeway. allows too prosecutors but much notes the serious properly Merritt Judge simplistic is a over- Judge opinion issues Merritt’s vindictiveness problems complex problem. It is unfor- Prosecutors are reaction prosecutor. present defendants, he reaches the ostrich-like con- opposed to criminal tunate that necessarily mistakes. honest clusion that because vindic- prosecutors make Merritt, police, do not think that it should I tiveness difficult Unlike Nor do possible. are problems ignored insurmountable. whenever these our duty we shirk think that should I opinions While in this case each apply clear' Su- police by pros- will read interest doubtless be precedent. Court preme alike, ecutors counsel neither and defense dealing with the difficulties recognize judges I they nor district of the circuit I as this one.24 situations such actual fact guidance. have Given the will definitive provides a balancing test that believe the law the circuits chaotic nature of irony The that of them. is resolution good vindictiveness, we regarding prosecutorial recognizes the balancing test I advance guidance ques- expect can further which under- interests strong prosecutorial Supreme Court in the near tion from the The difference is Merritt’s views. Judge lie that, then, regrettable until future. It is not to these interests. it does abdicate that colleagues passed up opportuni- my have unique are facts this case peculiar impose potentially controls ty to needed rare where balanc- it is a instance prosecutorial conduct. abusive barring of additional ing test results brought trial. In most such before situations, interest will be strong and the vindictive-

so would not slight

ness so bringing additional

be barred

Judge Merritt would look double and would ex- guidance clause jeopardy NATIONAL LABOR RELATIONS pre-trial all situa- Bordenkircher tend BOARD, Petitioner, problem this idea is tions.25 anywhere judicial support no exists there Indeed, both Black- I have seen for it. CORPORATION OF CONTINENTAL specifically rely on ledge and Bordenkircher MICHIGAN, Holiday INC. dba Inn process clause alone do the due West, Respondent. I “values.” am of jeopardy double speak of 77-1564. No. prosecutorial vindictiveness view that far than situations in-

encompasses more of Appeals, volving trial. a second Circuit. Sixth V Conclusion 26, 1979. Dec. conclusion, greater far I accord would vindictiveness scrutiny my colleagues. than either of

questions opinion is not unreasonable

Judge Green’s think, Judge suggested questions, limitation I Merritt’s Merritt’s rhetorical balancing after first to situations A test answered in this dissent. are argument than that broader weigh over even a he cites on either can each the factors limit equation. plaintiff-defendant made I note side involving a trial again to situations issues are once 2, supra. present which he retrial. See n. if a adds have, Any bring earlier. but did not could effect, problems, are of resultant making. own cutor’s

Case Details

Case Name: United States v. Tallice Andrews and Thurston Brooks

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 15, 1980

Citation: 612 F.2d 235

Docket Number: 78-5166

Court Abbreviation: 6th Cir.