U.S. v. Ruesga-Martinez, RUESGA-MARTINE

• Citation: 534 F.2d 1367
• Decision Date: 22 April 1976
• Docket Number: RUESGA-MARTINE,No. 75-3660,A,75-3660
• Parties: UNITED STATES of America, Appellee, v. Bernardinoppellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1367

534 F.2d 1367

UNITED STATES of America, Appellee, v. Bernardino RUESGA-MARTINEZ, Appellant.

No. 75-3660.

United States Court of Appeals,

Ninth Circuit.

April 22, 1976.

Rehearing Denied June 2, 1976.

Glorene Franco (argued), San Diego, Cal., for appellant.

Robert D. Krause, Asst. U. S. Atty. (argued), San Diego, Cal., for appellee.

OPINION

Before ELY and TRASK, Circuit Judges, and VAN PELT, ^* District Judge.

ELY, Circuit Judge:

Ruesga-Martinez appeals his conviction on a two-count felony indictment charging him with unlawful entry and reentry into the United States in violation of 8 U.S.C. §§ 1325 and 1326. We reverse.

On August 13, 1975, the appellant was arraigned before a magistrate on a complaint charging him with unlawful entry in violation of 8 U.S.C. § 1325. Section 1325 provides that first offenders are guilty of a misdemeanor, punishable by imprisonment of not more than six months, or by a fine of not more than $500, or both. Multiple offenders are guilty of a felony, punishable by imprisonment for a maximum of 2 years and a maximum fine of $1,000. Although the prosecution was aware that appellant was a multiple offender, it chose to charge him with a misdemeanor before the magistrate.

Appellant pleaded not guilty to the charge. Thereafter, he refused to sign a document that would have constituted a waiver of his right to be tried by a district judge and any right that he might have had to a jury trial. The magistrate then ordered the United States Attorney to file an information against appellant in the District Court. On September 2, 1975, appellant was arraigned on a two-count indictment charging him with a felony violation of 8 U.S.C. § 1325 as a multiple offender and with violating 8 U.S.C. § 1326, which provides that a deported alien who reenters the United States unlawfully commits a felony. Appellant entered not guilty pleas to both counts and moved to dismiss the indictment on grounds that the increase in the severity of the charges against him violated his constitutional due process rights under the Fifth Amendment. The motion was denied, whereupon the appellant waived a jury trial and was found guilty by the District Court on a set of stipulated facts. The District Court imposed sentences of eighteen months imprisonment on each count, the sentences to run concurrently.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court examined the issue of whether a trial court can impose a more severe sentence upon retrial and reconviction after an accused has successfully challenged his first conviction on appeal. The Court held that, although heavier sentences are not absolutely prohibited, due process requires that the reasons for imposing such sentences upon retrial must affirmatively appear so that an accused may be free, when taking an appeal, of any apprehension of subsequent retaliatory or vindictive sentencing because of his successful appeal. 395 U.S. at 725-26, 89 S.Ct. at 2080-81, 23 L.Ed.2d at 669-70.

In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Supreme Court extended the rule in Pearce to protect the accused against the apprehension of prosecutorial vindictiveness. In Blackledge the accused, Perry, was initially charged with a misdemeanor assault with a deadly weapon for an altercation with another inmate that occurred while Perry was in prison. Perry was convicted in an inferior court in North Carolina and given a sentence of six months confinement, this sentence to be served upon the completion of the prison term he was then serving. Perry chose to exercise his right under North Carolina law to a trial de novo in the Superior Court. Prior to the trial de novo, the prosecution obtained an indictment charging Perry with a felony for the same acts for which he had previously been charged with a misdemeanor. The net result was an increase of eleven months in Perry's sentence. The Supreme Court held that, when the circumstances "pose a realistic likelihood of 'vindictiveness' . . . due process of law requires a rule analogous to that of the Pearce case." 417 U.S. at 27, 94 S.Ct. at 2102, 40 L.Ed.2d at 634. Thus, even though there was absolutely no evidence of vindictiveness in the record, the Court held that it was constitutionally impermissible for the prosecution to bring the more serious charge against Perry after he had exercised his statutory right to appeal.

Pearce and Blackledge therefore establish, beyond doubt, that when the prosecution has occasion to reindict the accused because the accused has exercised some procedural right, the prosecution bears a heavy burden of proving that any increase in the severity of the alleged charges was not motivated by a vindictive motive. ¹ We do not question the prosecutor's authority to bring the felony charges in the first instance (see United States v. Brown, 482 F.2d 1359, 1360 (9th Cir. 1973)), nor do we question the prosecutor's discretion in choosing which charges to bring against a particular defendant (see Spillman v. United States, 413 F.2d 527 (9th Cir.), cert. denied, 396 U.S. 930, 90 S.Ct. 265, 24 L.Ed.2d 228 (1969)). But when, as here, there is a significant possibility that such discretion may have been exercised with a vindictive motive or purpose, the reason for the increase in the gravity of the charges must be made to appear.

We do not intend by our opinion to impugn the actual motives of the United States Attorney's office in any way. But Pearce and Blackledge seek to reduce or eliminate apprehension on the part of an accused that he may be subjected to retaliatory or vindictive punishment by the prosecution only for attempting to exercise his procedural rights. Hence, the mere appearance of vindictiveness is enough to place the burden on the prosecution. When the appellant in the present case refused to sign the waiver form, the ensuing increase in the severity of the charges against him created a sufficient appearance of vindictiveness to bring the principles of Pearce and Blackledge into application.

On the record before us there is absolutely no evidence that justifies the increase in the charges brought against appellant. ² The prosecution attempts to justify its conduct by emphasizing that there was more than ample evidence that appellant was a multiple offender. This does not in itself justify an increase in the severity of the charges in the second proceeding because that evidence was known to the prosecution before it brought the original lesser charge. United States v. Gerard, 491 F.2d 1300, 1304-07 (9th Cir. 1974) ³ In the present case the only new facts alleged in the felony indictment were appellant's previous arrest, conviction, and deportation. There can be no doubt that such facts were known to the prosecution before it instituted the original complaint. ⁴ That the matter was handled by an inexperienced prosecutor, as argued at oral argument by the Government's appellate counsel, is, of course, no acceptable excuse whatsoever.

The prosecution further argues that Pearce and Blackledge do not apply because appellant was not entitled to a jury trial in the misdemeanor proceeding. It argues that since appellant had no right that could be waived, there was no right to be protected against the threat of vindictive prosecution. This argument is without merit. Pearce and Blackledge apply regardless of whether the accused asserts a constitutional right, a common law right, or a statutory right, and it is clear that appellant originally possessed, at the very least, the statutory right to be...