United States v. Andrews

• Decision Date: 03 February 1978
• Docket Number: Crim. No. 7-80096.
• Parties: UNITED STATES of America, Plaintiff, v. Tallice ANDREWS and Thurston Brooks, Jr., Defendants.
• Court: U.S. District Court — Western District of Michigan

444 F. Supp. 1238

UNITED STATES of America, Plaintiff, v. Tallice ANDREWS and Thurston Brooks, Jr., Defendants.

Crim. No. 7-80096.

United States District Court, E. D. Michigan, S. D.

February 3, 1978.

Victoria A. Toensing, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

John W. Tapp, Richard R. Nelson, Detroit, Mich., for defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS COUNT I OF THE INDICTMENT

PHILIP PRATT, District Judge.

Defendants Thurston Brooks and Tallice Andrews are charged in a three count superseding indictment with conspiracy, possession with intent to distribute heroin and unlawfully carrying a firearm during the commission of a felony. They have filed numerous pre-trial motions. The Court is here concerned only with the defendants' motion to dismiss Count I of the indictment.

The defendants contend that Count I of the superseding indictment, the conspiracy count, should be dismissed because it was obtained in a fashion that suggests impermissible prosecutorial vindictiveness. The pertinent facts are that defendants were arrested at Detroit Metropolitan Airport on November 16, 1975. A complaint was issued two days later and then dismissed for lack of progress in January, 1976. In August, 1976 an indictment was returned charging Fannie Braswell with narcotics offenses. That indictment was superseded on November 8, 1976 charging Ms. Braswell and the other two defendants with narcotics and firearms offenses. On December 29, 1976 defendants Andrews and Brooks appeared before a Magistrate of this Court to be arraigned on the superseding indictment and were remanded without bail as requested by government motion. They appealed to this Court and were admitted to bail January 11. On January 13, 1977 the Grand Jury returned a second superseding indictment identical to the November, 1976 indictment except that a conspiracy count was added.¹ Defendants contend that the second superseding indictment, which added a new charge after they exercised their constitutional and statutory rights to be admitted to reasonable bail, was an impermissible exercise of prosecutorial power tending to chill the exercise of their rights.

Due process of law requires that even the appearance of vindictiveness must be absent from judicial proceedings. Thus, in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) the Supreme Court reversed a conviction where a greater sentence was imposed on a defendant after he was retried following reversal of his initial convictions. The Court held that these greater sentences resulted in a chilling of the defendant's right to appeal where there were no identifiable, objective reasons appearing on the record for the increased sentence. The Court said:

"Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since such fear of vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." Id. at 725, 89 S.Ct. at 2080.

In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) this holding was extended to encompass vindictive prosecutorial action. Over a single dissent, the Supreme Court held that where a prosecutor who has a stake in the outcome "ups the ante" after a defendant exercises his right to a trial de novo in a two-tiered criminal system, the ruling of North Carolina v. Pearce, supra, applies. In Blackledge the court emphasized that the lack of proof of bad faith is not fatal to a defendant's due process claim. Instead the court said:

"The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that `since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal . . . it is the apprehension of the harm which is the evil.'"

Blackledge v. Perry, supra at 28, 94 S.Ct. at 2102.

Courts have interpreted this language to mean that in the context of a colorable claim of prosecutorial vindictiveness the prosecutor must justify his or her actions in the same manner as would a judge under Pearce by some fact or event, unrelated to the defendant's exercise of his rights, of which the prosecutor learns after the initial charge. U. S. v. Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976); U. S. v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974); U. S. v. Gerard, 491 F.2d 1300 (9th Cir. 1974). Sefcheck v. Brewer, 301 F.Supp. 793 (S.D.Iowa 1969). Consistent with Pearce and Blackledge, these courts' inquiries have not been directed at whether actual retaliation was shown, but whether the appearance of vindictiveness exists. See also U. S. v. Johnson, 537 F.2d 1170 (4th Cir. 1976). As a corollary of these holdings, the justification for the increased charge must dispel the appearance, not the actuality, of vindictiveness.

The government argues as a threshold issue that the instant case does not fall within the holding of Pearce, Blackledge or their progeny. The government attempts to distinguish the previously cited cases by discussing their particular settings. Specifically, the government argues that the lack of a verdict or plea of guilty distinguishes this case from the law defendants rely on. These arguments are unavailing. As already noted, it is the apprehension that there may be retaliatory action, not the procedural state of the facts, which implicates due process rights. Reduced to its simplest terms, the Court is presented with a situation where there was an exercise by defendants of their right to seek admittance to bail, followed by a superseding indictment charging a new crime, with a separate penalty which arose from the same events that led to the original indictment. This is clearly a case that calls for analysis under the rule of Pearce and Blackledge.

In North Carolina v. Pearce, supra, which concerned increased penalties upon resentencing, the Supreme Court defined the relevant test as follows:

"In order to assure the absence of retaliatory motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." (Emphasis supplied). 395 U.S. at 726, 89 S.Ct. at 2081.

In applying this standard to a possible situation of prosecutorial abuse, the Court of Appeals for the District of Columbia has said:

"The fact that in a particular case the actual impact on the defendant of a charge increase is slight is, of course, not determinative, any more than the fact that a prosecutor may not in fact have acted out of vindictiveness, for the evil to which Pearce is directed is the apprehension on the defendant's part of receiving a vindictively-imposed penalty for the assertion of rights. Moreover, we would hesitate to distinguish Pearce even in a case where the only possible prejudicial effect of the charge increase was minimal. The difficulty of drawing the line between those charge increases which do and do not carry sufficient potential impact to require restrictions of the kind imposed in Pearce persuades us that all charge increases should in this respect be treated alike."

U. S. v. Jamison, supra 164 U.S.App.D.C. at 308, 505 F.2d at 415. (Original emphasis). But cf. U. S. v. Sturgill, 563 F.2d 307 (6th Cir. 1977).

After reviewing the law, the Jamison court concluded that the sort of information justifying an increase in charge would include, for example, lack of existence of essential elements of the increased offense at the time of original indictment² or where the government, through no fault of its own, discovers new evidence of which it was unaware at the time of the original charge.

Neither of these situations is present in the instant case. The government expressly concedes that all the elements of the conspiracy charge, and all the facts which underlie the charge, were known to it at the time of the November, 1976 indictment. Instead the government seeks to justify its conduct by pointing out that the prosecutor in this case was inexperienced and did not realize that she should or could have sought a conspiracy indictment. This, in combination with a moratorium on the work of the Grand Jury in this District, due to challenges to the validity of the composition of those juries, and vacation schedules in the prosecutor's office, it is argued, prevented the presentation of testimony concerning a conspiracy to the Grand Jury until two days after the defendants' bond motion was decided. Government counsel has represented that but for the moratorium and scheduling difficulties she would have presented the conspiracy evidence to the Grand Jury in mid-December, prior to the time defendants filed their bond motion.³

In U. S. v. Ruesga-Martinez, supra, the Ninth Circuit, in an impressive opinion, considered certain of the issues presented by these facts. In that case, an alien was originally charged with unlawful entry into the United States, in violation of 8 U.S.C. § 1325. Section 1325 provides that first offenders are to be charged as misdemeanants. Under the Immigration Law, multiple offenders are to be charged as felons. Although the prosecutor, who was inexperienced, knew defendant to be a multiple offender, he nonetheless chose to charge him with the misdemeanor. When the defendant was arraigned he refused to waive his right to be tried by a district judge and a jury. Thereafter, the United States Attorney...