Prosecutorial discretion

Prosecutorial discretion

Sheer, Lara Beth

PROSECUTORIAL DISCRETION

Courts recognize a prosecutor’s broad discretion to initiate and conduct criminal prosecutions, in part out of regard for the separation of powers doctrine695 and in part because “the decision to prosecute is particularly ill-suited to judicial review.”696 In the absence of contrary evidence, courts presume that criminal prosecutions are undertaken in good faith and in a nondiscriminatory manner.697 So long as a prosecutor has probable cause to believe that the accused has committed an offense, the decision to prosecute rests within her discretion.698 A prosecutor has broad authority to decide whether to investigate,699 grant immunity,700 or permit a plea bargain,701 and to determine whether to bring charges,702 what charges to bring,703 when to bring charges,704 and where to bring charges.705

Although it is the prosecutor’s prerogative to recommend leniency under the Sentencing Guidelines,706 exercise of this discretion is reviewable if based on an unconstitutional motive.707 Furthermore, the prosecutor does not have unreviewable discretion to impose or waive the enhanced sentencing provisions available under 18 U.S.C. 924(c)(1) by opting to charge and try a defendant in separate prosecutions or under a multi-count indictment.708

There are other limits to a prosecutor’s discretion,709 and the judiciary has a responsibility to protect individuals from prosecutorial conduct that violates constitutional rights.710 Such conduct usually involves either selective prosecution, which denies equal protection of the law,711 or vindictive prosecution, which violates due process.712

Selective Prosecution. A prosecutor’s decision to bring charges rarely violates the Equal Protection Clause. In Wayte v. United States,713 the Supreme Court held that to demonstrate selective prosecution a defendant must show that she received disparate treatment and that her prosecution was improperly motivated.714 Disparate treatment arises if others similarly situated are not prosecuted;715 improper purpose exists when selection is “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.”716 Because courts presume that the government undertakes a prosecution in good faith, a defendant challenging an indictment on selective prosecution grounds bears a heavy burden of proving facts sufficient to satisfy these two requirements.717

To be entitled to discovery, which can help prove a selective prosecution claim, a defendant must meet standards that are nearly as rigorous as the standards required to prove the actual elements of a selective prosecution claim itself. In United States v. Armstrong,718 the Supreme Court defined the threshold at which a defendant is entitled to discovery to help prove a selective prosecution claim as “a credible showing of different treatment of similarly situated persons.719 Furthermore, in a motion for an evidentiary hearing, the defendant must establish a prima facie case of selective prosecution.720 Additionally, a defendant waives the defense of selective prosecution unless she properly raises it before trial.721 Vindictive Prosecution. A prosecutor’s use of the charging process may violate due process if it penalizes the exercise of constitutional or statutory rights.722 If a defendant shows actual vindictiveness, she establishes a per se due process violation.23

If a defendant shows that the circumstances of her case so require, a presumption of vindictiveness may arise.724 A defendant has a greater probability of obtaining this presumption when the alleged vindictiveness occurs during or after trial than when it occurs before trial. In Blackledge v. Perry,725 the Supreme Court held that the Due Process Clause prohibits a prosecutor from bringing a more serious charge against a defendant who has pursued a statutory right of appeal from a conviction on a lesser charge for the same offense.726 Although the defendant in Blackledge did not show actual vindictiveness on the part of the prosecutor, the Court held that due process is offended by those possibilities of increased punishment that pose a “realistic likelihood of `vindictiveness.’ “727 Thus, to ensure defendants are not deterred from exercising their procedural rights, courts recognize a rebuttable presumption of vindictiveness whenever prosecutors increase the number or severity of charges after the defendant has appealed her conviction.728 Only a showing of events that occur subsequent to the original indictment and that justify a reindictment will overcome this presumption.729

In Bordenkircher v. Hayes,730 however, the Supreme Court found no due process violation when the prosecutor threatened during plea negotiations to reindict the defendant on a more serious charge if the defendant refused to plead guilty to the lesser crime originally charged.731 Reasoning that the “State’s unilateral imposition of a penalty upon a defendant who has chosen to exercise a legal right to attack his original conviction [is] `very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense,’ “,732 the Court concluded that so long as the accused is fully informed of the terms of the offer,733 is free to accept or reject the offer,734 and is legitimately subject to the threatened additional charge,735 the danger of retaliation does not exist in a plea bargaining setting.736

The Supreme Court further limited the presumption of prosecutorial vindictiveness in the pretrial context in United States v. Goodwin.737 The Court rejected the defendant’s argument that his indictment on a felony charge following his request for a jury trial on pending misdemeanor charges gave rise to a presumption of vindictiveness.738 The Court noted that in the pretrial context, where “the prosecutor’s assessment of the proper extent of prosecution may not have been crystallized,”739 reindictment on a more serious charge is much less likely to be motivated by prosecutorial vindictiveness than when a charge is changed after a trial begins or after a conviction has been obtained and the State has had the opportunity to fully assess its case.740 Therefore, in these circumstances, a defendant must demonstrate actual vindictiveness to prove a due process violation.741

A presumption of vindictiveness will not arise when objective circumstances, considerations, or events in the proceedings indicate the prosecutor’s decision to reindict was not vindictive.742 In considering claims of selective and vindictive prosecution, most courts apply a clearly erroneous standard of review.743

Lara Beth Sheer

695. See U.S. v. Armstrong, 116 S. Ct. 1480, 1486 (1995) (separation of powers concerns and systemic costs of judicial intrusions caution against setting threshold showing for discovery for selective prosecution claims too low); U.S. v. Smith, 55 F.3d 157, 159 (4th Cir. 1995) (separation of powers doctrine prohibits court from denying prosecutor’s motion to dismiss absent showing motion motivated by considerations clearly contrary to public interest, such as bribery, dislike of victim, or dissatisfaction with impaneled jury); U.S. v. Chagra, 669 F.2d 241, 247 (5th Cir. 1982) (constitutional authority for faithful execution of laws textually committed to executive branch); U.S. v. Zawaba, 39 F.3d 279, 284 (lOth Cir. 1994) (order compelling government to elect 20 counts of 70-count indictment impinges upon separation of powers where order forced, at least temporarily, abandonment of separate crimes).

696. Wayte v. U.S., 470 U.S. 598, 607 (1985); see Town of Newton v. Rumery, 480 U.S. 386, 396 (1987) (broad discretion appropriate because prosecutor, not courts, must evaluate strength of case, allocation of resources, and enforcement priorities); U.S. v. Brock, 782 F.2d 1442, 1444 (7th Cir. 1986) (broad discretion given to delay prosecution in order to allow wider investigation; such priority setting ill-suited to judicial review); U.S. v. Tucker, 78 F.3d 1313, 1316 (8th Cir.) (Attorney General’s exercise of discretion to refer matters to Office of Independent Counsel for investigation and prosecution not subject to judicial review), cert. denied, 117 S. Ct. 76 (1996); U.S. v. Bauer, 75 F.3d 1366, 1376 (9th Cir.) (discretion beyond judicial review unless defendants make prima facie showing that decision rested on impermissible basis), modified, 84 F.3d 1549, cert. denied, 117 S. Ct. 267 (1996).

697. See U.S. v. Gary, 74 F.3d 304, 313 (lst Cir.) (prosecutor entitled to threshold presumption that acted in good faith for reasons of sound governmental policy), cert. denied, 116 S. Ct. 2567 (1996); U.S. v. Parham, 16 F.3d 844, 846 (8th Cir. 1994) (absent showing of “intentional and purposeful discrimination,” good faith prosecution presumed); U.S. v. Redondo-Lemos, 27 F.3d 439, 444 (9th Cir. 1994) (judge must presume constitutionality of prosecutorial decisions).

698. Wayte, 470 U.S. at 607; see U.S. v. LaPorta, 46 F.3d 152, 161 (2d Cir. 1994) (decision to prosecute in prosecutor’s discretion as long as probable cause exists); U.S. v. Esposito, 968 F.2d 300, 306 (3d Cir. 1992) (same); U.S. v. Carter, 953 F.2d 1449, 1462 (Sth Cir. 1992) (same); U.S. v. Davis, 15 F.3d 526, 529 (6th Cir. 1994) (same); Anderson v. County of Montgomery, 111 F.3d 494, 500 (7th Cir.) (same), cert. denied, 118 S. Ct. 371 (1997); U.S. v. Brown, 9 F.3d 1374, 1375 (8th Cir. 1993) (“[S]o long as the prosecutor has probable cause . . . the decision whether or not to prosecute . . . generally rests entirely within his discretion.” (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978))).

The Department of Justice instructs its attorneys to commence prosecutions when they believe a federal offense has been committed and the evidence is sufficient to convict, unless: (1) there is no substantial federal interest in the prosecution; (2) the suspect is subject to effective prosecution in another jurisdiction; or (3) adequate alternatives to prosecution exist. Principles of Federal Prosecution, supra note 1, at 10.

The Department of Justice has adopted an internal practice known as the “Petite policy” under which the government will pursue a federal prosecution following a state prosecution for the same act only when there are compelling reasons and the prosecuting attorney obtains prior approval from the Assistant Attorney General. See Dual Prosecution and Successive Federal Prosecution Policies, UNITED STATES ATTORNEY’S MANUAL 9-2.142 (1980) (describing mechanics of Petite policy). The policy derives its name from the case that discussed such re-prosecutions, Petite v. U.S., 361 U.S. 529, 530-31 (1960) (per curiam). The “Petite policy” is discussed in detail in Dual Sovereignty in DouBLE JEOPARDY in this Part.

699. Compare U.S. v. Martinez, 785 F.2d 663, 670 (9th Cir. 1986) (court review of investigation limited by prosecutorial discretion), superseded on other grounds, 855 F.2d 621 (1988) and Community for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986) (same) with U.S. v. Gordon, 817 F.2d 1538, 1540 (llth Cir. 1987) (court review of investigative and prosecutorial decisions proper when direct evidence suggests discriminatory policy focusing only on blacks in voter fraud investigations).

700. Compare U.S. v. St. Michael’s Credit Union, 880 F.2d 579, 598 (lst Cir. 1989) (absent substantial

showing prosecutor abused her discretion, courts will defer to prosecutor’s immunization decision); U.S. v. Burns, 684 F.2d 1066, 1077-78 (2d Cir. 1982) (absent discriminatory use of immunity to gain tactical advantage or to force witness to invoke Fifth Amendment privilege, prosecutor has discretion in granting statutory immunity to defense witness); U.S. v. Mohney, 949 F.2d 1397, 1401 (6th Cir. 1991) (absent prosecutorial misconduct, prosecutor has “considerable discretion” to request or deny immunity for witnesses previously charged in, but dismissed from, defendant’s indictment); U.S. v. Schweihs, 971 F.2d 1302, 1315 (7th Cir. 1992) (absent clear abuse of discretion violating Due Process Clause, prosecutor has discretion not to immunize witness despite defendant’s need for witness’s testimony about conspiracy) and U.S. v. Capozzi, 883 F.2d 608, 614 (8th Cir. 1989) (absent showing of prosecutorial misconduct, prosecutor has discretion in granting immunity to defense witnesses) with U.S. v. Angiulo, 897 F.2d 1169, 1191-92 (lst Cir. 1990) (court may order prosecutor to grant immunity or face judgment of acquittal when prosecutor’s intimidation tactics cause potential witness to invoke Fifth Amendment and withhold exculpatory testimony).

701. See U.S. v. Williams, 47 F.3d 658, 663 (4th Cir. 1995) (no constitutional violation when prosecutor predicated plea offer on assistance to local police); Russell v. Collins, 998 F.2d 1287, 1294 (Sth Cir. 1993) (no constitutional violation when prosecutor enters into plea bargains with some defendants but not others absent showing of impermissible standard); Rodriguez v. Peters, 63 F.3d 546, 563 (7th Cir. 1995) (no constitutional violation when prosecutor offers co-conspirator to murder lesser charge in return for testimony against defendant); U.S. v. Sustaita, 1 F.3d 950, 952 (9th Cir. 1993) (no constitutional violation when defendant merely asserts that prosecutor acted arbitrarily in refusing to offer plea bargain), cert. denied, 115 S. Ct. 1414 (1995); U.S. v. Kettering, 861 F.2d 675, 677 (llth Cir. 1988) (no constitutional violation when prosecutor withdraws plea offer before acceptance; decision to make or keep open offer completely within prosecutor’s discretion); U.S. v. Dockery, 965 F.2d 1112, 1116 (D.C. Cir. 1992) (no constitutional violation when federal prosecutor allegedly refuses to re-extend state court plea offer to defendant’s successor counsel); cf. U.S. v. Robertson, 45 F.3d 1423, 1438 (lOth Cir.) (to insure respect for prosecutorial independence, court must set forth on record prosecutor’s reasons for framing plea bargain and court’s justifications for rejecting it), cert. denied, 116 S. Ct. 133 (1995). But see U.S. v. Cooper, 70 F.3d 563, 567 (lOth Cir. 1995) (if prosecutor discovers facts showing that prosecutorial discretion not properly exercised, he has ethical obligation to withdraw from plea agreement and inform defendant; if government does not inform defendant until sentencing hearing, defendant allowed to withdraw plea).

702. See U.S. v. Williams, 504 U.S. 36, 48 (1992) (prosecutor requires no leave of court to seek grand jury indictment); U.S. v. Raineri, 42 F.3d 36, 43 (Ist Cir. 1994) (court cannot compel government to accept dismissal with prejudice; choice to permanently forego prosecution ordinarily made by executive branch), cert. denied, 115 S. Ct. 2286 (1995); Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990) (neither grand jury nor judge can compel prosecutor to act when she decides not to bring charges); U.S. v. Smith, 55 F.3d 157, 159-60 (4th Cir. 1995) (absent finding prosecutor motivated by considerations clearly contrary to public interest, trial court must grant prosecutor’s motion to dismiss); U.S. v. Johnson, 91 F.3d 695, 698 (5th Cir. 1996) (prosecutor has broad discretion during pretrial proceedings to determine extent of societal interest in prosecution), cert. denied, 117 S. Ct. 752 (1997); Futernick v. Sumpter Township, 78 F.3d 1051, 1056 (6th Cir.) (prosecutor has broad discretion in determining whom to prosecute), cert. denied, 117 S. Ct. 296 (1996); U.S. v. Traynoff, 53 F.3d 168, 170 (7th Cir.) (prosecutor can unilaterally decide to dismiss case without waiting for court order), cert. denied, 116 S. Ct. 327 (1995); U.S. v. Andersen, 940 F.2d 593, 597 (lOth Cir. 1991) (prosecutor ultimately decides whether to prosecute and court will not assume prosecutor acted as “rubber stamp” when narcotics strike force made initial decision to refer case to prosecutor).

703. U.S. v. LaBonte, 117 S. Ct. 1673, 1679 (1997) (broad prosecutorial discretion is an “integral feature of the criminal justice system …”); see U.S. v. Batchelder, 442 U.S. 114, 123-25 (1979) (prosecution proper under any statute violated by defendant, without regard to penalty, as long as prosecution not discriminatory); U.S. v. Zyskind, 118 F.3d 113, 117 (2d Cir. 1997) (prosecution proper under 18 U.S.C. 1344 because defendant failed to produce a basis for arguing that the government acted invidiously in prosecuting him under that statute); U.S. v. Arch Trading Co., 987 F.2d 1087, 1092 (4th Cir. 1993) (prosecution proper under either of two conspiracy clauses in 18 U.S.C. 371 when defendant not unfairly burdened by prosecution); U.S. v. Papia, 910 F.2d 1357, 1365 (7th Cir. 1990) (prosecution proper although 31 separate misdemeanors not aggregated into single felony count); U.S. v. Beasley, 102 F.3d 1440, 1453 (8th Cir. 1996) (prosecution proper when defendant’s claim that government’s charging decisions were improper lacked legal theory and authority to support the claim), cert. denied, 117 S. Ct. 1856 (1997); Hunter v. U.S. 73 F.3d 260, 262 (9th Cir. 1996) (per curiam) (when two criminal statutes apply to same conduct, prosecutor may decide under which to proceed); U.S. v. Wiles, 102 F.3d 1043, 1066 (lOth Cir. 1996) (government may prosecute under either 15 U.S.C. 78ff or 18 U.S.C. 1001, because both proscribe the making of false statements to the SEC), reh’g granted in part, 106 F.3d 1516 10th Cir. 1997), cert. denied, 118 S. Ct. 363 (1997); U.S. v. Howard, 13 F.3d 1500, 1503 (llth Cir. 1994)

(prosecution proper under Communications Act instead of Wiretap Act which carries lighter sentence so long as government does not discriminate against class of defendants). But see U.S. v. LaPorta, 46 E3d 152, 156 (2d Cir. 1994) (prosecution under general provision of statute improper where another section of same statute provides penalty for specific crime committed); U.S. v. Harris, 997 F.2d 812, 819 (lOth Cir. 1993) (when government relies on known drug addiction to carry out multiple transactions for primary purpose of stacking charges, it engages in outrageous conduct violative of defendant’s due process rights). See generally Principles of Federal Prosecution, supra note 1, at 16-17 (to ensure equal justice, prosecutor should charge all defendants with most serious offense encompassed by conduct likely to result in conviction).

The Federal Juvenile Delinquency Act confers considerable discretion upon the prosecutor as to whether the defendant will be tried as an adult even when the alleged criminal conduct qualifies as an act of juvenile delinquency. U.S. v. Welch, 15 F.3d 1202, 1207 (Ist Cir. 1993). But cf. Impounded, 117 F.3d 730, 736 (3d Cir. 1997) (Attorney General’s certification decision subject to judicial review); U.S. v. Juvenile Male No. 1, 86 F.3d 1314, 1320 (4th Cir. 1996) (same); U.S. v. Juvenile No. 1, 118 F.3d 298, 304 (Sth Cir.) (same), cert. denied, 118 S. Ct. 457 (1997); U.S. v. I.D.P., 102 F.3d 507, 515 (llth Cir. 1996) (same), cert. denied, 118 S. Ct. 305 (1997).

704. See U.S. v. Lovasco, 431 U.S. 783, 795-96 (1977) (18-month delay between crime and indictment not due process violation, even if delay prejudiced defendant, when delay result of prosecutor’s good faith investigation); U.S. v. Stokes, 124 F.3d 39 (Ist. Cir. 1997) (prosecutor’s decision to refrain from initiating federal proceedings until outcome of parallel but independent proceedings fell within prosecutorial discretion), cert. denied, 118 S. Ct. 1103 (1998); U.S. v. Crouch, 84 F.3d 1497, 1523 (Sth Cir. 1996) (en banc) (preindictment delay did not violate due process when defendant failed to establish that government intentionally delayed for the purpose of gaining some tactical advantage over the accused), cert. denied, 117 S. Ct. 736 (1997); U.S. v. Fuzer, 18 F.3d 517, 519 (7th Cir. 1994) (4-year, 11-month delay between crime and indictment not due process violation when defendant failed to demonstrate prejudice or that government delayed for impermissible reason). U.S. v. Johnson, 120 F.3d 1107 (lOth Cir. 1997) (preindictment delay did not violate due process when defendant conceded that she did not know the reason for delay); U.S. v. Foxman, 87 F.3d 1220, 1223 (llth Cir. 1996) (delaying indictment of defendant until after codefendant’s convinction was affirmed and codefendant was immunized might violate due process if governmental conduct was designed to gain tactical advantage). Preindictment delays are discussed further in SPEEDY TRIAL in this Part.

705. See U.S. v. Melendez, 60 F.3d 41, 50 (2d Cir. 1995) (decision to drop state prosecution and reindict accomplices in federal court, thus enabling prosecution of defendant, did not violate due process when no showing decision based on suspect characteristics of defendant or otherwise in bad faith); U.S. v. Parson, 955 F.2d 858, 873 (3d Cir. 1992) (prosecution proper when drug-related charges brought in federal court, but arrest-related charges left in state court pursuant to explicit referral policy and agreement between federal and state prosecutors); U.S. v. Satterwhite, 980 F.2d 317, 320 (Sth Cir. 1992) (decision to prosecute in federal rather than state court not evidence of abuse of prosecutorial discretion even when allegedly made without any objective or reviewable guidelines); U.S. v. Davis, IS F.3d 526, 530 (6th Cir. 1994) (decision to prosecute in federal rather than state court insufficient to prove constitutional violation when federal conviction yields greater sentence); Reed v. U.S., 985 F.2d 880, 882-83 (7th Cir. 1993) (decision to prosecute in federal rather than state court not evidence of abuse of prosecutorial discretion even when state law more lenient); Bell v. U.S., 48 F.3d 1042, 1044 (8th Cir. 1995) (decision to prosecute in federal rather than state court insufficient to prove constitutional violation when federal conviction yields greater sentence and no proof decision based on impermissible factors); U.S. v. Oakes, 11 F.3d 897, 899 (9th Cir. 1993) (decision to prosecute in federal rather than state court within prosecutorial discretion even when based on desire to impose harsher sentence); U.S. v. Maxwell, 966 F.2d 545, 549 (lOth Cir. 1992) (decision to prosecute in federal rather than state court not due process violation absent showing of impermissible conduct); U.S. v. Harden, 37 F.3d 595, 599 (llth Cir. 1994) (decision to prosecute crack cocaine case in federal rather than state court, subjecting defendant to harsher sentence, not unconstitutional when prosecution possible under state or federal law; that prosecutor influenced by available penalties not unconstitutional (citing Batchelder, 442 U.S. at 125)); U.S. v. Clark, 8 F.3d 839, 842 (D.C. Cir. 1993) (decision to prosecute in federal rather than Superior Court insufficient to prove constitutional violation when federal conviction will yield greater sentence).

706. See Wade v. U.S., 504 U.S. 181, 185-86 (1992) (prosecutor’s refusal to seek reduction of sentence proper under 5 SKI.1 if defendant fails to allege that refusal motivated by defendant’s race or religion); U.S. v. Montanez, 82 F.3d 520, 522 (lst Cir. 1996) (prosecutor has discretion to move for departure below allowable statutory minimum sentence); U.S. v. Resto, 74 F.3d 22, 25 (2d Cir. 1996) (prosecutor retains broad latitude in determining whether to move for downward departure in sentencing pursuant to

cooperation agreement making government’s assessment of defendant’s cooperation binding on defendant); U.S. v. Goossens, 84 F.3d 697, 704 (4th Cir. 1996) (government has broad discretion to determine whether to move for downward departure based on substantial assistance, “subject only to constitutional or self-imposed restraints”); U.S. v. Amaya, 111 F.3d 386, 388 (Sth Cir. 1997) (court cannot make even a factual inquiry into government’s decision not to recommend downward departure “unless it is manifestly clear from obvious bases that invidious discrimination is the motivation”); U.S. v. Senn, 102 F.3d 327, 332 (7th Cir. 1996) (government’s recommendation for a downward departure, based on a percentage of defendant’s total sentence, is not improper, irrational, or arbitrary, and does not indicate bad faith on behalf of government, especially in absence of prosecutorial animus toward defendant); U.S. v. Nicolace, 90 F.3d 255, 258-9 (8th Cir. 1996) (defendant failed to make substantial threshold showing that government’s refusal to file motion for downward departure for substantial assistance was irrational or based on an unconstitutional motive when the information defendant provided to prosecutor proved to be of little use and when plea agreement did not contain any provisions regarding the possible filing of a substantial assistance motion); U.S. v. Murphy, 65 F.3d 758, 762 (9th Cir. 1995) (prosecutor’s refusal to move for (sec) SKI.1 downward departure not reviewable absent unconstitutional motive or arbitrariness); U.S. v. Easter, 981 F.2d 1549, 1555 (lOth Cir. 1992) (prosecutor’s decision to move for 5 SKI.1 downward departure within prosecutorial discretion); U.S. v. Alvarez, IIS F.3d 839, 841 (llth Cir. 1997) (same); U.S. v. White, 71 F.3d 920, 924 (D.C. Cir. 1995) (prosecutor’s refusal to file motion for departure under Sentencing Guidelines within prosecutorial discretion when government has legitimate interest in having defendant provide more assistance than less). But see U.S. v. Knights, 968 F.2d 1483, 1488 (2d Cir. 1992) (prosecutor’s refusal to move for downward departure not within prosecutorial discretion after defendant testified as promised and government offered insufficient reasons for refusal). For further discussion of the government’s right to move for a downward departure, see Departures in SENTENCING GUIDELINES in Part IV.

707. See Wade, 504 U.S. at 1843-44 (courts have authority to review prosecutor’s refusal to file substantial assistance motion if based on unconstitutional motive); U.S. v. Price, 95 F.3d 364, 368 (Sth Cir. 1996) (per curiam) (defendant’s request for downward departure was correctly rejected when defendant did not allege that government’s refusal to move for downward departure was based upon an unconstitutional motive, and plea agreement expressly stated that decision to move for downward departure remains within “sole discretion” of the government); U.S. v. Carter, 122 F.3d 469 (7th Cir. 1997) (defendant failed to make threshold showing of any unconstitutional motive on behalf of government and to show that government’s withholding of motion for downward departure was not rationally related to any legitimate government end, when government’s withholding of motion was based on defendant’s withdrawal of first guilty plea, and on the fact that assistance provided by defendant proved to be unrealiable); U.S. v. Matlock, 109 F.3d 1313, 1317-8 (8th Cir.) (defendant failed to prove that government’s decision not to file motion for downward departure based on substantial assistance was irrational or in bad faith when defendant initially refused to enter courtroom to testify against his codefendants, and defendant admitted his testimony against codefendants “was practically an act,” despite plea agreement obligating defendant to cooperate in prosecution of codefendants), cert. denied, 118 S. Ct. 188 (1997); U.S. v. Khoury, 62 F.3d 1138, 1140-42 (9th Cir. 1995) (court had authority to depart downward without prosecutor’s motion when government initially made 5K1.1 motion for substantial assistance then withdrew motion in retaliation for defendant’s exercise of right to trial); U.S. v. Hawley, 93 F.3d 682, 691 (lOth Cir. 1996) (court lacked jurisdiction to consider defendant’s claim that he was entitled to downward departure when defendant failed to allege that the government had an unconstitutional motive for its refusal to file motion for substantial assistance on his behalf).

708. Deal v. U.S., 508 U.S. 129, 133-34 & n.2 (1993) (Court’s interpretation of “conviction” and its reading of 18 U.S.C. 924(c)(1) limit prosecutor’s ability to determine punishment by manipulating manner of charging); see U.S. v. Medina-Gutierrez, 980 F.2d 980, 984 (5th Cir. 1992) (dictum) (Sentencing Guidelines seek to control count manipulation by prosecutor resulting in inconsistent sentences for similarly situated defendants).

709. Wayte v. U.S., 470 U.S. 598, 608 (1985); see Arcara v. Cloud Books, Inc., 478 U.S. 697, 707 n.4 (1986) (dictum) (prosecutorial discretion limited by First Amendment; public health nuisance charge must not be pretext for suppressing protected materials in adult bookstores); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (prosecutorial discretion limited by equal protection rights; prosecutors may not discriminate against Chinese laundry owners by not prosecuting similarly situated non-Chinese persons); U.S. v. Mastroianni, 749 F.2d 900, 911 (lst Cir. 1984) (prosecutorial discretion limited by fundamental

conceptions of justice); Rashad v. Burt, 108 F.3d 677, 681 (6th Cir. 1997) (prosecutorial discretion limited by Double Jeopardy Clause because government treated defendant’s behavior as two separate crimes when two stashes of drugs were stored in different locations and thus subjected defendant to two trials for the same criminal actions), cert. denied, 118 S. Ct. 850 (1998); U.S. v. Bayles, 923 F.2d 70, 72 (7th Cir. 1991) (prosecutorial discretion limited by First Amendment and equal protection rights; decisions to prosecute reviewed to ensure decisions not based on prohibited criteria such as race or speech); U.S. v. Brown, 9 F.3d 1374, 1375 (8th Cir. 1993) (prosecutorial discretion limited by constitutional constraints including equal protection). But see U.S. v. Bauer, 84 F.3d 1549, 1560 (9th Cir. 1996) (prosecutor’s decision to prosecute is beyond judicial review without a defendant’s prima facie showing that the decision to prosecute rested on an impermissible basis), cert. denied, 117 S. Ct. 992 (1997).

710. See U.S. v. Redondo-Lemos, 27 F.3d 439, 444 (9th Cir. 1994) (court has duty to closely scrutinize evidence of invidious discrimination); Phelps v. Hamilton, 59 F.3d 1058, 1063-64 (lOth Cir. 1995) (federal court authorized to enjoin pending state criminal prosecution under Younger abstention doctrine where prosecution commenced in bad faith or to harass, based on flagrantly and patently unconstitutional statute, or related to any other such extraordinary circumstance creating threat of great and immediate irreparable injury (citing Younger v. Harris, 401 U.S. 37 (1971))).

711. See Wayte, 470 U.S. at 608 (selective prosecution claims should be judged according to ordinary equal protection standards); Yick Wo, 118 U.S. at 373-74 (arrest and prosecution of Chinese laundry owners violated equal protection when similarly situated non-Chinese laundry owners not arrested or prosecuted); Willhauck v. Halpin, 953 F.2d 689, 711 (Ist Cir. 1991) (claim of selective prosecution must be supported by evidence that defendant’s equal protection rights were violated); Shaw v. Martin, 733 F.2d 304, 312 (4th Cir. 1984) (claim of selective prosecution must be supported by proof of discriminatory intent or purpose); U.S. v. Andersen, 940 F.2d 593, 596 (lOth Cir. 1991) (claim of selective prosecution must be supported by evidence that prosecutor based decision to charge on “factors such as defendant’s race, sex, religion, or exercise of a statutory or constitutional right”); U.S. v. Willis, 956 F.2d 248, 250 (llth Cir. 1992) (per curiam) (claim of selective prosecution must be supported by evidence of unlawful purpose such as discrimination against race).

712. See Blackledge v. Perry, 417 U.S. 21, 28-29 (1974) (subsequent prosecution for more serious charge after defendant successfully appealed conviction violated due process); Willhauck v. Halpin, 953 F.2d 689, 711 (Ist Cir. 1991) (due process violated when prosecution brought in retaliation for defendant’s exercise of her legal rights (citing Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978))); U.S. v. White, 972 F.2d 16, 19 (2d Cir. 1992) (same); U.S. v. Shavers, 820 F.2d 1375, 1377 (4th Cir. 1987) (same); U.S. v. Melancon, 972 F.2d 566, 578 (5th Cir. 1992) (same); U.S. v. Cyprian, 23 F.3d 1189, 1196 (7th Cir. 1994) (same). But see U.S. v. Paguio, 114 F.3d 928, 930 (9th Cir. 1997) (due process is not violated when government’s decision to prosecute was based on ulterior motive to pressure a spouse into cooperating in another case, because prosecutor had probable cause to believe that defendant had committed the crime).

713. 470 U.S. 598 (1985).

714. Id. at 602-03. The defendant in Wayte refused to register for the draft and instead wrote letters to government officials stating that he had not registered and did not intend to do so. Id. at 601 n.2. The Department of Justice was given the names of only those who had either reported themselves or were reported by others. Id. at 602. After repeated attempts to persuade the defendant to register, the Justice Department prosecuted him and others for willfully failing to register. Id. at 602-03. The Court conceded that because only 13 of an estimated 674,000 nonregistrants were indicted, the defendant had been prosecuted while other nonregistrants had not. Id. at 604, 609. But the defendant’s failure to show that the government based its decision not to prosecute others on an impermissible motive precluded a finding of constitutional violation. Id. at 609-10. The Court noted that “[d]iscriminatory purpose . . . implies more than . . . intent as awareness of consequences. It implies the decision maker . . . selected or reaffirmed a particular course of action at least in part `because of,’ not merely `in spite of’ its adverse effects upon an identifiable group.” Id. at 611. See also U.S. v. Bell, 113 F.3d 1345, 1351 n.6 (3d Cir.) (defendant’s selective prosecution argument was frivolous when she could not establish that she was selected for prosecution for an invidious reason, because she argued only that the government wanted to pursue murder charges against her), cert. denied, 118 S. Ct. 447 (1997); U.S. v. Bell, 86 F.3d 820, 823 (8th Cir.)

(defendant failed to establish that enforcement of statute had a discriminatory effect when he failed to show that he was treated differently than members of other races), cert. denied, 117 S. Ct. 372 (1996); U.S. v. Bauer, 75 F.3d 1366, 1376 (9th Cir. 1996) (defendant failed to fulfill requirements of establishing selective prosecution claim when after an evidentiary hearing, trial court ruled that the decision to prosecute was not based on prejudice, but instead was based on information obtained from informants and government’s own investigation), cert. denied, 117 S. Ct. 992 (1997).

715. Compare U.S. v. Hoover, 727 F.2d 387, 389 (Sth Cir. 1984) (proof that only three union members prosecuted out of 300 persons who failed to report for work sufficient to meet first prong of selective prosecution test) and U.S. v. Hazel, 696 F.2d 473, 475 (6th Cir. 1983) (proof that only two outspoken members of tax protest group prosecuted for tax violations when 34 other blameworthy members not prosecuted sufficient to satisfy first prong of selective prosecution test) with U.S. v. Lopez, 71 F.3d 954, 963 (Ist Cir. 1995) (prosecution of multiple false loan applications totalling considerable sum not selective when government sufficiently refuted defendant’s claims that similarly situated persons normally pursued civilly), cert. denied, 116 S. Ct. 2529 (1996); St. German of Alaska Eastern Orthodox Catholic Church v. U.S., 840 F.2d 1087, 1096 (2d Cir. 1988) (prosecution of taxpayer not selective when defendant unable to demonstrate single instance when IRS failed to investigate religious organization for soliciting donation of depressed real estate); U.S. v. Olvis, 97 F.3d 739, 744-45 (4th Cir.1996) (defendant failed to establish that government did not prosecute similarly situated individuals of a different race when individuals of a different race had significantly different prosecutorial profiles, and when there were about 50 other black conspirators whom prosecutors chose not to indict); U.S. v. Cooks, 52 F.3d 101, 105 (5th Cir. 1995) (prosecution of African-American defendant in federal rather than state court to obtain stiffer sentence not selective where evidence showed increase in minority prosecutions but no evidence showed similarly situated white defendants more often prosecuted in state rather than federal court); U.S. v. Monsoor, 77 F.3d 1031, 1034 (7th Cir. 1996) (prosecution for Lacey Act violations not selective when government presented evidence of inability to link other parties to interstate transport of illegally obtained catfish); U.S. v. Brown, 9 F.3d 1374, 1376 (8th Cir. 1993) (prosecution of African-American defendant not selective although penalties for possession of crack cocaine as compared to powder cocaine have disparate effect on African-Americans when defendant failed to establish that others similarly situated were not prosecuted); U.S. v. Estrada-Plata, 57 F.3d 757, 760-61 (9th Cir. 1995) (prosecution’s use of “fast-track” plea bargaining policy for deported alien found in U.S. after felony conviction not selective when no evidence similarly situated illegal aliens given more significant time to evaluate plea offer); U.S. v. Furman, 31 F.3d 1034, 1037 (lOth Cir. 1994) (prosecution of bank director for fraud not selective when eight others also prosecuted in connection with alleged fraud); Jones v. White, 992 F.2d 1548, 1572-73 (llth Cir. 1993) (prosecution of “habitual offenders” not selective because based on random application of statute, likely attributable to negligence or error; no violation of equal protection rights) and Juluke v. Hodel, 811 F.2d 1553, 1561-62 (D.C. Cir. 1987) (prosecution for violating parcels regulation near White House not selective when defendants did not voluntarily comply with officers’ request as did others not prosecuted).

716. Wayte, 470 U.S. at 608; cf. Crowley v. Landon, 780 F.2d 440, 443 (4th Cir. 1985) (reincarceration of some prisoners erroneously released by lower court while others remained free not impermissibly selective when government not motivated by discriminatory purpose even though action had discriminatory effect). Compare Falls v. Town of Dyer, 875 F.2d 146, 148-49 (7th Cir. 1989) (prosecution selective when statute enforced only against defendant, even though defendant chosen randomly rather than on improper basis such as race, because statutory classification applicable only to single individual is irrational and constitutes bill of attainder) with McCleskey v. Kemp, 481 U.S. 279, 292-97 (1987) (prosecution for murder and subsequent imposition of death sentence did not violate Equal Protection Clause when defendant failed to show discrimination by actors in case); Wayte, 470 U.S. at 609-10 (prosecution of persons who specifically informed government of refusal to register for draft not impermissibly selective when defendant failed to show government prosecuted him for First Amendment activities); Ayala-Martinez v. Anglero, 982 F.2d 26, 28 (Ist Cir. 1992) (prosecution not violation of due process because defendant failed to show prosecution racially or politically motivated); U.S. v. Maddox, 48 F.3d 791, 797 (4th Cir. 1995) (prosecution not arbitrary when government offers 5Kl.l downward departure motion to whichever defendant pled first and denies motion to second because rationally related to legitimate ends of securing two convictions, expediting plea negotiations, and avoiding expense of at least one trial); U.S. v. Hoover, 727 F.2d 387, 390-91 (Sth Cir. 1984) (prosecution of president of local air traffic controllers union for participation in strike not impermissibly selective when defendant failed to show prosecution resulted from status as union official rather than as leader of strike); U.S. v. Smith, 953 F.2d 1060, 1063 (7th Cir. 1992) (arbitrariness allowed under 5K1.1 of Guidelines not grounds for selective prosecution; only forbidden grounds, such as race or speech, contestable); U.S. v. Brown, 9 F.3d

1374, 1376 (8th Cir. 1993) (prosecution of African-American defendant for possession of crack cocaine not impermissibly selective despite statistical disparity in sentencing of African-Americans when defendant failed to establish that decision to bring charges against him had racially discriminatory effect); U.S. v. Dumas, 64 F.3d 1427, 1431 (9th Cir. 1995) (prosecutions for crack cocaine not sufficient to prove selective prosecution claims despite statistics showing that crack cocaine prosecutions in federal court disproportionately impact African-Americans because lack of evidence of discriminatory purpose), cert. denied, 116 S. Ct. 1341 (1996) and U.S. v. Furman, 31 F.3d 1034, 1037 (lOth Cir. 1994) (prosecution of bank director for fraud not impermissibly selective when defendant provided no evidence beyond conclusory allegations that government prosecuted to prevent exercise of First Amendment rights). “A showing of discriminatory intent is not necessary when the equal protection claim is based on an overtly discriminatory classification.” Wayte, 470 U.S. at 608 n.10; accord U.S. v. Aguilar, 883 F.2d 662, 706 (9th Cir. 1989) (when persons are equal in all other respects, prosecution only of persons exercising constitutional rights raises inference of discrimination).

717. See McCleskey, 481 U.S. at 279 (statistical study suggesting relationship between race and imposition of death sentence insufficient to establish discrimination against black defendant in capital sentencing process); U.S. v. Bernal-Rojas, 933 F.2d 97, 99 (Ist Cir. 1991) (evidence consisting of single example of more favorably treated defendants insufficient to show “consistent pattern of unequal administration of the law”); U.S. v. Fares, 978 F.2d 52, 58-60 (2d Cir. 1992) (evidence insufficient to establish selective prosecution where defendant failed to support claim that he was prosecuted because of alleged membership in terrorist organization); U.S. v. Schoolcraft, 879 F.2d 64, 68-69 (3d Cir. 1989) (per curiam) (evidence insufficient to establish selective prosecution where defendant alleged only that he was victim of selective prosecution); U.S. v. Olvis, 97 F.3d 739, 747 (4th Cir. 1996) (evidence insufficient to establish selective prosecution claim when the study defendants relied upon to show discriminatory effect neglected to identify non-black individuals who could have been prosecuted for offenses for which defendants were charged, but were not so prosecuted); U.S. v. McCord, 695 F.2d 823, 826 (Sth Cir. 1983) (per curiam) (evidence insufficient to establish selective prosecution where defendant noted that statute not applied in district in previous 26 years); U.S. v. Davis, 15 F.3d 526, 530 (6th Cir. 1994) (evidence insufficient to establish selective prosecution where defendant offered no evidence to support claim that prosecution resulted from refusal to assist local police); U.S. v. Westmoreland, 122 F.3d 431, 434 (7th Cir. 1997) (evidence insufficient to establish selective prosecution when defendant presented evidence of three indictments charging African Americans, but made no claim that government failed to prosecute other races for the same crime); U.S. v. Parham, 16 F.3d 844, 846 (8th Cir. 1994) (evidence insufficient to establish selective prosecution where defendants presented no evidence that others’ acts of ballot forgery or fraud were not prosecuted); U.S. v. Estrada-Plata, 57 F.3d 757, 761 (9th Cir. 1995) (evidence insufficient to establish selective prosecution where evidence “clear” government selected 8 U.S.C. 1326(b) cases for “fast-track” plea bargaining policy to conserve prosecutorial and judicial resources and defendant presented no evidence policy choice made due to involvement of Hispanic defendants or to deprive defendants of effective counsel); U.S. v. Jones, 52 F.3d 924, 927 (llth Cir. 1995) (evidence insufficient to establish selective prosecution where white attorney soliciting bribes from same judge as African-American attorney-defendant not yet indicted at time of defendant’s trial but indicted, tried, and convicted since trial’s conclusion); Att’y Gen. of U.S. v. Irish People, Inc., 796 F.2d 520, 526 (D.C. Cir. 1986) (evidence insufficient to establish selective prosecution where evidence relied on by defendant did not raise factual issues or meet burden to establish prosecutor’s motive to suppress protected expression).

718 116 SCt.1480 (1996).

719. Id. at 1489. The Court held that “[a] selective prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.” Id. at 1486. In determining the new threshold for discovery, the Court found that “[t]he vast majority of the Courts of Appeals require a defendant to produce some evidence that similarly situated defendants of other races could have been prosecuted, but were not, and this requirement is consistent with our equal protection case law.” Id. at 1488; see U.S. v. Al Jibori, 90 F.3d 22, 25 (2d Cir. 1996) (defendant must make credible showing of different treatment of similarly

situated persons to establish colorable basis for finding discriminatory effect and become eligible for discovery); U.S. v. Cooks, 52 F.3d 101, 105 (Sth Cir.1995) (defendant’s inability to make colorable claim of selective prosecution bars discovery); U.S. v. Adams, 870 F.2d 1140, 1146 (6th Cir. 1989) (defendant may compel discovery if able to show “colorable basis” of selective prosecution); U.S. v. Goulding, 26 F.3d 656, 661 (7th Cir. 1994) (same); U.S. v. Reese, 60 F.3d 660, 661-63 (9th Cir. 1995) (same); U.S. v. P.H.E., Inc., 965 F.2d 848, 860 (lOth Cir. 1992) (same); U.S. v. Gordon, 817 F.2d 1538, 1540 (llth Cir. 1987) (same). But see U.S. v. Greenwood, 796 F.2d 49, 52 (4th Cir. 1986) (motion to compel discovery denied unless legitimate issue of improper government conduct raised); U.S. v. Parham, 16 F.3d 844, 846 (8th Cir. 1994) (motion to compel discovery denied unless defendant establishes prima facie case); U.S. v. Turner, 104 F.3d 1180, 1184-85 (9th Cir. 1997) (defendants failed to make threshold showing that government did not prosecute similarly situated defendants of other races when defendants used studies that did not identify similarly situated individuals, relied on statistics that did not consider sociological factors that affect patterns of crime, and did not show discriminatory intent); U.S. v. Quinn, 123 F.3d 1415, 1426 (llth Cir. 1997) (defendant failed to make threshold showing that government did not prosecute similarly situated defendants of other races when government contended that it prosecuted cases involving less than SO grams of crack only when additional circumstances such as prior drug offenses were involved), cert. denied, No. 97-7799, 1998 WL 54175 (Mar. 9, 1998).

The scope of discovery for a selective prosecution claim must bear a reasonable relationship to the decision to prosecute the particular defendant. See U.S. v. Gomez-Lopez, 62 F.3d 304, 306 (9th Cir. 1995) (dictum) (“Even if the nationwide statistics and other evidence could properly have constituted a colorable basis . . . that does not in itself justify an order for nationwide discovery.”). The Armstrong court did not define a standard for review of motions to compel discovery, and circuit courts have applied either the clearly erroneous standard or the abuse of discretion standard. Compare U.S. v. Murphy, 836 E2d 248, 256 (6th Cir. 1988) (clearly erroneous standard appropriate for review of motion for discovery relating to selective prosecution claim) and U.S. v. Parham, 16 F.3d 844, 846 (8th Cir. 1994) (same) with U.S. v. Fiel, 35 F.3d 997, 1007 (4th Cir. 1994) (abuse of discretion standard appropriate for review of motion to compel discovery relating to selective prosecution claim) and U.S. v. Reese, 60 F.3d 660-61 (9th Cir. I995) (same).

720. See U.S. v. Goldberg, 105 F.3d 770, 776 (lst Cir. 1997) (evidentiary hearing properly denied when defendant’s claim of selectivity was weakened by government explanations regarding the decision to prosecute, provided to the court under oath by several prosecutors); U.S. v. Richardson, 856 F.2d 644, 647 (4th Cir. 1988) (evidentiary hearing properly denied when government presented sufficient reasons to justify decision; when defendant makes claim of selective prosecution with respect to pretrial diversion, district court should determine whether defendant’s claim is nonfrivolous on its face and supported by specific factual allegations before government explains its actions); U.S. v. Cooks, 52 F.3d 101, 105 (5th Cir. 1995) (evidentiary hearing properly denied because African-American defendant failed to make prima facie case when he could not show similarly situated white defendants not prosecuted in federal court); U.S. v. Bustamante, 805 F.2d 201, 202 (6th Cir. 1986) (evidentiary hearing properly denied when defendant accused of making false statements on loan application failed to make prima facie case against propriety of prosecutor’s purpose); U.S. v. Monsoor, 77 F.3d 1031, 1034 (7th Cir. 1996) (evidentiary hearing properly denied because defendant failed to make prima facie case when he could not show that other parties had participated in interstate transport as required for federal prosecution); U.S. v. Welliver, 976 F.2d 1148, 1155 (8th Cir. 1992) (evidentiary hearing properly denied because defendant failed to make a prima facie case when he could not support allegations that government prosecution motivated by defendant’s exercise of his right of free speech); U.S. v. Bourgeios, 964 F.2d 935, 938 (9th Cir. 1992) (dictum) (prima facie threshold required for evidentiary hearing on selective prosecution claim); U.S. v. Jennings, 991 F.2d 725, 730 (llth Cir. 1993) (evidentiary hearing properly denied because defendant failed to make prima facie case when he could not show that other inmate assaults not prosecuted same magnitude and severity as his). But see U.S. v. Bassford, 812 F.2d 16, 19-20 (lst Cir. 1987) (“To obtain an evidentiary hearing, the defendant has a lesser burden and need allege only some facts (a) tending to show that he has been selectively prosecuted and (b) raising a reasonable doubt about the propriety of the prosecution’s purpose.”); Jones v. White, 992 F.2d 1548, 1572 (llth Cir. 1993) (evidentiary hearing conducted where “defendant presents facts sufficient to raise a reasonable doubt about the prosecutor’s motive”). A trial judge’s decision not to hold an evidentiary hearing is reviewed for abuse of discretion. U.S. v. Gary, 74 F.3d 304, 313 (lst Cir.), cert. denied, 116 S. Ct. 2567 (1996).

721. U.S. v. Gary, 74 F.3d 304, 313 (lst Cir.), cert. denied, 116 S. Ct. 2567 (1996); U.S. v. Taylor, 562 F.2d 1345, 1356 (2d Cir. 1977); U.S. v. Schmidt, 935 F.2d 1440, 1450 (4th Cir. 1991); U.S. v. Westmoreland, 122 F.3d 431, 434 (7th Cir. 1997); U.S. v. Stuttley, 103 F.3d 684, 686 (8th Cir. 1996), cert. denied, 118 S. Ct. 83 (1997); U.S. v. Aguilar, 883 F.2d 662, 705 n.44 (9th Cir. 1989); U.S. v. Gordon, 4

F.3d 1567, 1569 (lOth Cir. 1993); cf. U.S. v. Cortez, 973 F.2d 764, 766 (9th Cir. 1992) (trial court may grant relief from waiver by “reserv[ing to defendant] . . . the right to make . . . motion after trial” under FED. R. CRIM. P. 12(f)); U.S. v. Jones, 52 F.3d 924, 926 n.2 (llth Cir. 1995) (dictum) (defense attorney’s conflict of interest in raising selective prosecution defense prior to trial vitiates waiver). 722. Charges of vindictive prosecution usually arise only when the defendant has been reindicted. See U.S. v. Wilson, .639 F.2d 500, 502 (9th Cir. 1981) (vindictive prosecution allegation appropriate only if second indictment brought; selective prosecution claim challenges initial indictment). But see U.S. v. Montoya, 45 F.3d 1286, 1299 (9th Cir.) (mere filing of indictment can support vindictive prosecution charge).

Reindictment, however, does not automatically give rise to an inference of vindictiveness. See, e.g., U.S. v. Perez, 79 F.3d 79, 81 (7th Cir.) (defendant failed to prove that new indictment was a result of prosecutorial vindictivenss and that the government intended to discourage similar appeals, even though government added a second and lesser charge after the conviction was reversed because government knew it could convict defendant under the second charge more easily than under the first), cert. denied, 117 S. Ct. 153 (1996).

There can be no prosecutorial vindictiveness when neither the number nor the severity of the charges is increased. See Jarrett v. U.S., 822 F.2d 1438, 1442 (7th Cir. 1987) (no vindictiveness when only one prosecution and no increase in charges); U.S. v. Kinsey, 994 F.2d 699, 702 (9th Cir. 1993) (no proof of vindictive prosecution when government brought motion to correct sentencing error in response to defendants’ motion challenging sentence when no increase in severity of charge or sentence sought). Moreover, there can be no prosecutorial vindictiveness when the superseding indictment is for a less severe charge. See U.S. v. Aggarwal, 17 F.3d 737, 744 (Sth Cir. 1994) (no vindictiveness when prosecutor reindicted defendant on lesser charges after defendant successfully appealed sentence and guilty plea).

723. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort . . . and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is `patently unconstitutional.’ “) (citations omitted).

724. See U.S. v. Bullis, 77 F.3d 1553, 1559 (7th Cir. 1996) (to prove claim of prosecutorial vindictiveness defendant must show through objective evidence that prosecutorial conduct was motivated by prosecutorial animus, such as personal stake in outcome of case or attempt to seek self-vindication; if defendant successfully bears that burden, prosecution must produce evidence that proper motivation behind charges exists); U.S. v. Edmonds, 103 F.3d 822, 826 (9th Cir. 1996) (defendant failed to establish that his charge resulted from vindictive prosecution when he made no showing of actual vindictiveness on behalf of those who made charging decision, and when he was unable to show facts suggesting the appearance of vindictive prosecution in retaliation for the filing of a civil suit by defendant’s associate, given that defendant was indicted before his associate filed a civil suit); U.S. v. Contreras, 108 F.3d 1255, 1263 (lOth Cir.) (under a totality of the circumstances test, defendant failed to create a presumption of prosecutorial vindictiveness when government filed superceding bill of indictment adding new charges following mistrial, even though defendant asserted that government acted in response to negative publicity and asserted that government was aware of the information pertinent to the added charges prior to the first trial), cert. denied, 118 S. Ct. 116 (1997). 725. 417 U.S. 21 (1974).

726. Id. at 28-29. In Blackledge, the defendant exercised his statutory right to a trial de novo following his conviction on a misdemeanor. Id. at 22-23. The prosecutor obtained a superseding felony indictment covering the same conduct that formed the basis of the earlier charge. Id. at 23. The Court limited its holding to cases in which the prosecutor could have brought the more serious charge at the outset. Id. at 29 n.7.

727. Id. at 27. The Court reasoned that a prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo because such an appeal requires increased expenditures of prosecutorial resources before the defendant’s conviction becomes final, and may even result in the conviction being overturned. Id. If the prosecutor can readily discourage such appeals-by “upping the ante” through a felony indictment whenever a convicted misdemeanant pursues her statutory right to appellate remedy-the State can insure that very few defendants will be willing to take on the risk of a de novo trial. Id. at 27-28. A convicted person is entitled to pursue her statutory right to a trial de novo without the fear of retaliatory State action in the form of substituting a more serious charge for the original one. Id.

In Thigpen v. Roberts, 468 U.S. 27 (1984), a case with facts nearly identical to Blackledge, the Court refused to allow the degree of similarity between the original charges and the allegedly vindictive subsequent charges to enter into its analysis of the allegedly vindictive prosecution. Id. at 32 n.5. In addition, the Court declined to establish a rule applicable when two independent prosecutors are involved, noting that in Roberts the initial prosecutor participated fully in the entire prosecution. Id. at 31.

728. See Turner v. Tennessee, 940 F.2d 1000, 1002 (6th Cir. 1991) (presumption of vindictiveness when prosecutor who offered two-year sentence in first trial offered “no less than 20 years” before retrial after successful appeal); U.S. v. Miller, 948 F.2d 631, 633 (lOth Cir. 1991) (presumption of vindictiveness when “defendant successfully attacks first conviction and receives harsher sentence on retrial”); U.S. v. Taylor, 749 F.2d 1511, 1513 (llth Cir. 1985) (per curiam) (presumption of vindictiveness when prosecutor brought charge carrying potentially greater sentence than original charge, provided circumstances demonstrate either actual vindictiveness or realistic fear of vindictiveness) and U.S. v. Meyer, 810 F.2d 1242, 1246-47 (D.C. Cir. 1987) (presumption of vindictiveness when superseding indictment filed for purpose of punishing protesters who had invoked right to trial by jury). But see U.S. v. King, 126 F.3d 394, 399-400 (2d Cir. 1997) (presumption of vindictiveness rebutted when government strategized and sought to increase likelihood that at least one of the defendants would be convicted), petition for cert. filed, (Feb. 13, 1998) (No. 97-1330); U.S. v. Lightbourne, 104 F.3d 1172, 1179 (9th Cir. 1997) (no presumption of vindictiveness when defendant failed to draw connection between her increased sentence and her action to file a civil suit against the county, because the “prods and pokes of one government” that “stir a different government’s prosecutor to action” do not amount to proof of vindictiveness).

729. See U.S. v. Marrapese, 826 F.2d 145, 149-50 (Ist Cir. 1987) (prosecutor’s explanation of changed circumstances sufficiently objective to overcome presumption); U.S. v. Khan, 787 F.2d 28, 33 (2d Cir. 1986) (mistrial resulting from hung jury sufficiently objective to overcome presumption); Byrd v. McKaskle, 733 F.2d 1133, 1138 (5th Cir. 1984) (intervening change in Texas penal code that equalized penalties under original and subsequent charge sufficiently objective to overcome presumption; motivation objectively evident to defendant); U.S. v. Turpin, 920 F.2d 1377, 1388 (8th Cir. 1990) (inability to connect defendant with seized evidence when original charge filed sufficiently objective to overcome presumption); U.S. v. Clay, 925 F.2d 299, 302 (9th Cir. 1991) (fact that decision to continue investigation, leading to second indictment, made before defendant’s refusal to aid prosecution of co-defendants sufficiently objective to overcome presumption), overruled on other grounds by Rodriguera v. U.S., 954 F.2d 1465, 1468-69 (9th Cir. 1992); U.S. v. Corona, 849 F.2d 562, 567-68 (llth Cir. 1988) (fact that government investigation began prior to mistrial and appeal of superseding racketeering indictment sufficiently objective to overcome presumption). 730. 434 U.S. 357 (1978).

731. Id. at 358-59, 365. In Bordenkircher, the prosecutor stated that he possessed the evidence necessary for the additional recidivist charge under the Kentucky Habitual Criminal Act at the time of the original indictment for utterance of a forged instrument and admitted that the defendant’s refusal to plead guilty led to the reindictment. Id. at 359.

732. Id. at 362.

733. Id. at 360. The Court distinguished the defendant’s situation from one in which the prosecutor without notice brings an additional, more serious charge after plea negotiations have ended with the defendant’s decision to plead not guilty. Id. 734. Id. at 363. 735. Id. at 365.

736. Id. The Court noted that although the risk of increased punishment may deter a defendant from exercising trial rights, such choices are inevitable and permissible attributes of a plea bargaining system. Id. at 364.

Following the analysis in Bordenkircher, the circuit courts have refused to presume vindictiveness from reindictment following rejection of a plea bargain. See U.S. v. Stanley, 928 F.2d 575, 578-79 (2d Cir. 1991) (no vindictiveness when defendant informed that rejection of plea offer would lead to filing of firearms charge with stiffer penalty; moreover, offer renewed after plea agreement withdrawn); U.S. v. Oliver, 787 F.2d 124, 126 (3d Cir. 1986) (no vindictiveness when defendant informed of choices and consequences, and indictment followed only after defendant refused to cooperate with authorities); U.S. v. Williams, 47 F.3d 658, 662-63 (4th Cir. 1995) (no vindictiveness when prosecutor fulfilled threat to bring more severe charges in federal court after defendant refused to cooperate with police when pleading guilty); Smallwood v. Johnson, 73 F.3d 1343, 1351 (Sth Cir.) (no vindictiveness when defendant alleged that the decision to apply two enhancement provisions together was made only after defendant refused a plea bargain, because prosecutors can exercise discretion and charge a defendant as a habitual offender for refusing a plea bargain), cert. denied, 117 S. Ct. 212 (1996); U.S. v. Yarbough, 55 F.3d 280, 283 (7th Cir. 1995) (no vindictiveness when prosecutor added six counts to superseding indictment after defendant successfully withdrew guilty plea); U.S. v. Pemberton, 121 F.3d 1157, 1165 (8th Cir. 1997) (no vindictiveness when government warned defendant that he could be charged with more serious crimes if he insisted on going to trial), cert. denied, 118 S. Ct. 1046 (1998); U.S. v. Garza-Juarez, 992 F.2d 896, 907-08 (9th Cir. 1993) (no vindictiveness when government showed decision to seek additional charges might have been based solely on defendant’s rejection of plea bargain); U.S. v. Lampley, 127 F.3d 1231, 1245 (lOth Cir. 1997) (no vindictiveness when government notified defendant of its intention to add a superceding indictment before plea negotiations), cert. denied, 118 S. Ct. 1098 (1998); U.S. v. Cole, 755 F.2d 748, 757-58 (llth Cir. 1985) (no vindictiveness when defendant properly chargeable with additional counts under superseding indictment and defendant’s refusal to plead led to indictment); cf. U.S. v. Peters, 15 F.3d 540, 546 (6th Cir. 1994) (no vindictiveness when defendant charged with additional count under superseding indictment after defendant refused to stipulate to chain of custody and chemical analysis of seized crack cocaine).

In contrast, when the prosecutor fails to warn the defendant and increases the charges solely because the defendant has chosen to plead not guilty and go to trial, vindictiveness is presumed. See U.S. v. Meyer, 810 F.2d 1242, 1247 (D.C. Cir. 1987) (vindictiveness found when prosecutor without notice or warning increased charges against defendants after they invoked right to trial; although increased charges voluntarily dismissed, original informations also dismissed). 737. 457 U.S. 368 (1982).

738. The Court stated: “The possibility that a prosecutor would respond to a defendant’s pretrial demand for a jury trial by bringing charges not in the public interest that could only be explained as a penalty imposed on the defendant is so unlikely that a presumption of vindictiveness … is not warranted.” Id. at 384. In Goodwin, the defendant had been charged with several misdemeanors and petty offenses, including assault. Id. at 370. A Justice Department attorney who had authority only to try misdemeanors made a plea offer that Goodwin rejected; Goodwin subsequently demanded a jury trial. Id. The case was transferred to another prosecutor, who brought a four-count indictment that included a felony count of forcibly assaulting a federal officer. Id. at 370-71. Although the felony count arose out of the same conduct as the misdemeanor charges, the prosecutor stated that his decision to seek a felony indictment was not motivated by Goodwin’s request for a jury trial. Id. at 371 n.2. 739. Id. at 381.

740. Id. The Court explained that, because defendants regularly invoke procedural rights before trial that impose some burden on a prosecutor, including pretrial motions to suppress evidence, challenges to sufficiency of indictment, affirmative defenses, and demands for jury trials, it is unrealistic to presume that a prosecutor’s response to pretrial motions is an effort to penalize or deter the defendant. Id. Furthermore, because a prosecutor may discover additional information or recognize a basis for broader prosecution while preparing for trial, the Court held that a prosecutor should remain free before trial to exercise broad discretion in determining the extent of the societal interest in prosecution. Id. at 382. See also U.S. v. Branham, 97 F.3d 835, 849-50 (6th Cir. 1996) (defendant failed to establish prosecutorial vindictiveness when prosecutor filed superceding indictment that charged additional count of conspiracy after defendant filed motion to dismiss indictment charging drug violations, because prosecutor’s assessment of the “proper extent of prosecution” may not have been finalized at that point).

741. Id. at 384 n.19 (“only in a rare case would a defendant be able to overcome the presumptive validity of the prosecutor’s actions through such a demonstration”); see Willhauck v. Halpin, 953 F.2d 689, 711 (Ist Cir. 1991) (no proof of actual vindictiveness when prosecutors in two counties both brought charges against defendant resulting from car chase); U.S. v. LaPorta, 46 F.3d 152, 161 (2d Cir. 1994) (no proof of actual vindictiveness when government brought superseding indictment after defendant’s successful severance of counts where prosecutor would have sought superseding indictment whether or not original indictment severed due to new evidence conspiracy larger than known of at time of original indictment); U.S. v. Morsley, 64 F.3d 907, 920 (4th Cir. 1995) (no proof of actual vindictiveness when, after defendant’s repudiation of plea agreement, government pursued charges listed in original indictment with intent of obtaining stiffer penalty than originally bargained for in plea agreement), cert. denied, 116 S. Ct. 749 (1996); U.S. v. Bernal, 28 F.3d 630, 632 (7th Cir. 1994) (per curiam) (no proof of actual vindictiveness when federal prosecutor brought charges after defendant refused to plead guilty to state charges); U.S. v. Murphy, 65 F.3d 758, 762 (9th Cir. I995) (no proof of actual vindictiveness when government conditioned filing of 5K1.1 motion on defendant’s acceptance of plea offer even though government bargained to inform court of defendant’s assistance in exchange for that assistance but did not discuss the possibility of filing actual 5K1.1 motion until entered plea negotiations).

A court even failed to find vindictiveness when a prosecutor refused to allow a defendant to plead guilty as charged and threatened additional sanctions unless he agreed to affirmatively cooperate with the police. U.S. v. Williams, 47 F.3d 658, 662-63 (4th Cir. 1995) (no vindictiveness where state prosecutor fulfilled threat to drop state charges and refer for more severe charges in federal court when defendant refused to cooperate with local police when he pled guilty; though “plea” took form of threat, defendant gained opportunity would not have had if prosecutor originally referred case to federal authorities without first making offer).

Thus, courts are reluctant to impose a presumption of vindictiveness in the pretrial setting. See U.S. v. White, 972 F.2d 16, 19 (2d Cir. 1992) (no presumption of vindictiveness in pretrial setting when prosecution initiated after defendant challenged vehicle forfeiture; presumption arises only when prosecution brought after post-conviction activity of defendant); U.S. v. Johnson, 91 F.3d 695, 698 (Sth Cir. 1996) (no presumption of vindictiveness when federal prosecutor brought charges for firearms violations after defendant acquitted of capital murder in state court), cert. denied, 117 S. Ct. 752 (1997); U.S. v. Bullis, 77 F.3d 1553,1559 (7th Cir. 1996) (no presumption of vindictiveness when defendant successfully moved for transfer which imposes modest burden on prosecution); U.S. v. Schwalb, 83 F.3d 1039, 1040 (8th Cir. 1996) (no presumption of vindictiveness when prosecution responded to defendant’s pretrial motion to dismiss indictment by expanding challenged counts in superseding indictment); U.S. v. Hernandez 80 F.3d 1253, 1260 (9th Cir. 1996) (no presumption of vindictiveness when prosecutor brought second unrelated charge whereas subsequent charge arising from same nucleus of operative facts would raise presumption); U.S. v. Cole, 755 F2d 748,757-58 (llth Cir.1985) (no presumption of vindictiveness when defendant properly chargeable with additional counts under superseding indictment and defendant’s refusal to plead led to indictment); U.S. v. Wilson, 26 E3d 142, 154 (D.C. Cir.1994) (no presumption of vindictiveness when superseding indictment followed defendant’s successful transfer motion).

Goodwin, however, did not hold that vindictive prosecution can never occur in a pretrial setting. Adamson v. Ricketts, 865 F.2d 1011, 1018 n.8 (9th Cir. 1988) (en banc); see U.S. v. Meyer, 810 F.2d 1242, 1245-46 (D.C. Cir. 1988) (presumption of vindictiveness employed in pretrial context when suspicion of vindictiveness, raised by fact that those who chose to go to trial faced added charges, heightened by “simplicity and clarity of both the facts and law”); see also U.S. v. Garza-Juarez, 992 F.2d 896, 907 (9th Cir. 1993) (presumption of vindictiveness when government brought more serious charges after defendant refused to plead guilty and proceeded with motion to dismiss charges).

Some cases, such as those involving a mistrial, do not fit squarely into the pretrial/posttrial dichotomy. When a mistrial occurs for neutral reasons and without objection from the prosecution, the prosecutor has no reason to consider the defendant responsible for the need for a new trial and so may add charges before the second trial without a presumption of vindictiveness. See U.S. v. Marrapese, 826 F.2d 145, 149 (lst Cir. 1987) (no presumption of vindictiveness when charges added after mistrial due to hung jury); Lane v. Lord, 815 F.2d 876, 878-79 (2d Cir. 1987) (no presumption of vindictiveness when prosecutor increased charges after mistrial because defendant not exposed to more severe criminal penalties); U.S. v. Fiel, 35 F.3d 997, 1007-08 (4th Cir. 1994) (no presumption of vindictiveness when government brought additional charges after court declared mistrial due to hung jury and additional charges based on newly discovered evidence); U.S. v. McAllister, 29 F.3d 1180, 1185-86 (7th Cir. 1994) (no presumption of vindictiveness when government sought sentence enhancement after court declared mistrial due to hung jury); U.S. v. Rodgers, 18 F.3d 1425, 1430 (8th Cir. 1994) (no presumption of vindictiveness when government brought additional charges by reindictment after mistrial due to hung jury); U.S. v. Doran, 882 F.2d 1511, 1522 (lOth Cir. 1989) (no presumption of vindictiveness after mistrial even when new charges added following defendant’s assertion of speedy trial rights because rights asserted did not threaten prosecution with new duplicative trial). But see U.S. v. Motley, 655 F.2d 186, 187-89 (9th Cir. 1981) (presumption of vindictiveness when enhanced charges added after mistrial declared over government’s objections).

742. See U.S. v. Young, 955 F.2d 99, 108 (Ist Cir. 1992) (no presumption of vindictiveness when government filed new indictment with added counts after defendant moved to dismiss prior charge as unconstitutionally vague because for “obvious, and legitimate, reason . . the prosecutor would want to add other, less controversial, charges”); U.S. v. White, 972 F.2d 16, 19 (2d Cir. 1992) (no presumption of vindictiveness when prosecution modified charges after defendant challenged government’s attempt to forfeit his vehicle); U.S. v. Esposito, 968 F.2d 300, 304-05, 307 (3d Cir. 1992) (no presumption of vindictiveness when government chose to indict on predicate acts of earlier RICO charge from which defendant acquitted; acquittal not assertion of legal right by defendant subject to protection); U.S. v. MacDougall, 790 F.2d 1135, 1149-50 (4th Cir. 1986) (no presumption of vindictiveness when clear reason for dismissal and subsequent reindictment was improper original charge); U.S. v. Cooks, 52 F.3d 101, 105-06 (5th Cir. 1994) (no presumption of vindictiveness when government exercised discretionary authority to seek sentence enhancement after withdrawal of guilty plea which had waived enhancement); U.S. v. Reed, 821 F.2d 322, 326 (6th Cir. 1987) (no presumption of vindictiveness when no evidence improper purpose motivated prosecutor to upgrade tax evasion charges); U.S. v. Cyprian, 23 F.3d 1189, 1196 (7th Cir. 1994) (no presumption of vindictiveness when defendant previously acquitted on unrelated charges and current prosecution based on investigation that began before acquittal); U.S. v. Deitz, 991 F.2d 443, 445 (8th Cir. 1993) (no presumption of vindictiveness when more severe federal charges brought after state failed to prosecute within time limit prescribed by state statute); U.S. v. Montoya, 45 F.3d 1286, 1299 (9th Cir.) (no presumption of vindictiveness when, despite access to numerous internal government documents, defendant unable to prove improper motive for filing indictment after defendant originally granted formal immunity in return for testifying but then testified falsely before grand jury and prosecution based on independent evidence); U.S. v. Wall, 37 F.3d 1443, 1448 (lOth Cir. 1994) (no presumption of vindictiveness when government filed superseding indictment with increased number of legitimate felony counts immediately after defendant’s acquittal on charges in separate indictment when defendant requested four separate trials; additional indictment supported by evidence after acquittal legitimate prosecutorial consideration because levies punishment for crimes committed, not for exercise of right) and U.S. v. Wilson, 26 F.3d 142, 154 (D.C. Cir. 1994) (no presumption of vindictiveness when superseding indictment followed defendant’s successful transfer motion).

When the presumption does not arise, the defendant retains the burden of proof on vindictiveness. See U.S. v. Krezdorn, 718 F.2d 1360, 1365 (Sth Cir. 1983) (en banc). The prosecutor may counter the defendant’s allegations by offering proof that her actions were not vindictive. See id. at 1364-65 (prosecutor may negate allegation of vindictiveness by showing “mistake or oversight in his initial action, a different approach to prosecutorial duty by a successor prosecutor, or public demand for prosecution” or similar nonvindictive explanations for reindictment).

743. Compare U.S. v. Schoolcraft, 879 F.2d 64, 67 (3d Cir. 1989) (both vindictive and selective prosecution claims reviewed under clearly erroneous standard); U.S. v. Johnson, 91 F.3d 695, 698 (Sth Cir. 1996) (vindictive prosecution reviewed under clearly erroneous standard), cert. denied, 117 S. Ct. 752 (1997); U.S. v. Sammons, 918 F.2d 592, 601 (6th Cir. 1990) (same); U.S. v. Perez, 79 F.3d 79, 81

(7th Cir.) (same), cert. denied, 117 S. Ct. 153 (1996); U.S. v. Holmes, 794 F.2d 345, 348 (8th Cir. 1986) (selective prosecution reviewed under clearly erroneous standard); U.S. v. Bauer, 75 F.3d 1366, 1376 (9th Cir.) (same), modified, 84 F.3d 1549, cert. denied, 117 S. Ct. 267 (1996); U.S. v. Wall, 37 E3d 1443, 1448 (lOth Cir. 1994) (vindictive prosecution reviewed under clearly erroneous standard) and U.S. v. Meyer, 810 F.2d 1242, 1244 (D.C. Cir. 1986) (same); with U.S. v. Joya-Martinez, 947 F.2d 1141, 1145 (4th Cir. 1991) (selective prosecution reviewed under abuse of discretion standard) and U.S. v. Noushfar, 78 F.3d 1442, 1446 (9th Cir. 1996) (vindictive prosecution standard of review unsettled in Ninth Circuit; courts review under clearly erroneous, abuse of discretion, and de novo).

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