612 F.2d 235 (6th Cir. 1979), 78-5166, United States v. Andrews

Docket Nº:78-5166.
Citation:612 F.2d 235
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Tallice ANDREWS and Thurston Brooks, Defendants-Appellees.
Case Date:December 14, 1979
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 235

612 F.2d 235 (6th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellant,


Tallice ANDREWS and Thurston Brooks, Defendants-Appellees.

No. 78-5166.

United States Court of Appeals, Sixth Circuit

December 14, 1979

Argued Nov. 30, 1978.

As amended Feb. 15, 1980.

Page 236

James K. Robinson, U. S. Atty., Detroit, Mich., for plaintiff-appellant.

John W. Tapp, Asst. Federal Public Defender, Detroit, Mich., for Brooks.

William L. Woodard, Richard R. Nelson, Detroit, Mich., for Andrews.

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

Page 237

BEN C. GREEN, Senior District Judge.

In this action we are called upon to consider the question of "prosecutorial vindictiveness" under the principles enunciated by the Supreme Court in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

On November 16, 1975 defendants Tallice Andrews and Thurston Brooks were stopped and arrested at the Detroit Metropolitan Airport. 1 Also stopped and arrested with defendants was one Fannie Braswell. On November 8, 1976 all three individuals were jointly indicted for narcotics and firearms offenses under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(b) respectively.

On December 29, 1976 defendants Andrews and Brooks were arraigned before a United States Magistrate and were remanded without bail as requested by government motion. They appealed that ruling to the District Court, and on January 11, 1977 both defendants were admitted to bail. 2

On January 13, 1977 the Grand Jury returned a superseding indictment charging the three defendants (Andrews, Brooks and Braswell) with an additional conspiracy count pursuant to 21 U.S.C. § 846, alleging a conspiracy to violate 21 U.S.C. § 841(a)(1). The conspiracy alleged covered the period of November 15-16, 1976, and incorporated the substantive count offense of possessing heroin with intent to distribute as the crime intended to be committed.

Defendants Andrews and Brooks thereafter moved to dismiss the superseding indictment. They contended that the indictment was procured in retaliation for their exercising the constitutionally protected right to seek bail, and as such was the product of prosecutorial vindictiveness prohibited under Pearce-Blackledge. The District Judge granted the motion and dismissed the conspiracy count. United States v. Andrews, 444 F.Supp. 1238 (E.D.Mich., 1978).

In his opinion the District Judge held that "Due process of law requires that Even the appearance of vindictiveness must be absent from judicial proceedings." (emphasis added). Id., p. 1239. In construing Pearce and Blackledge he further held:

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. Id., p. 1240 (emphasis as in original).

It appears from the District Judge's opinion that the prosecution explained the circumstances of obtaining the superseding indictment:

. . . by pointing out that the prosecutor in this case was inexperienced and

Page 238

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 Id., p. 1241.

It is not clear from the District Judge's opinion whether he credited such testimony, 4 in that he found the reasons given to be legally insufficient, holding:

That the government failed to charge a conspiracy prior to defendants' assertion of the right to bail because of inexperience, mistake and difficulties with Grand Jury scheduling does not alter the fact that the increased charge "appears vindictive." If left uncorrected, such action would undoubtedly chill the assertion of Constitutional rights. Id., p. 1243.

In making such determination the District Judge expressed the view that the only factors which would sustain a superseding indictment under the facts of this action were changed circumstances or newly discovered evidence, without fault on the part of the government. Id., pp. 1241, 1244.

The District Judge's overall approach to this question of prosecutorial vindictiveness is exemplified by the following from the concluding portions of his opinion.

The cases previously cited demonstrate the systemic concerns involved in any motion to dismiss an indictment for prosecutorial vindictiveness. The Court is called upon in a motion such as this to determine whether the actions of the prosecutor are likely to engender a chilling effect on the exercise of Constitutional or statutory rights. Where, as here, there is An appearance of retaliatory vindictiveness the law imposes a heavy burden on the prosecution to justify its conduct in a manner that not only removes doubt as to actual vindictiveness, but puts at rest fears that the exercise of important rights will be deterred. The justification offered by the government here fails to provide a "neutral explanation" apparent from the record which satisfies the requisite test. U. S. v. Sturgill, (563 F.2d 307 (6th Cir. 1977)) supra, at 309. Id., p. 1244 (emphasis added).

We believe that the District Judge's interpretation of Pearce and Blackledge is too narrow, and do not find in those decisions support for the proposition that "appearance of vindictiveness" is a proper standard against which prosecutorial conduct is to be measured. Accordingly, the decision below must be vacated.

North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), involved the question of an increased penalty upon resentencing. In that action the defendant appealed his original conviction, obtained a reversal, was retried and again convicted, and sentenced more severely upon the second conviction. The Supreme Court held that due process prohibits actual vindictiveness in resentencing and "since the fear of such 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., p. 725, 89 S.Ct., p. 2080. Further holding that "In order to

Page 239

assure the absence of (retaliatory) motivation, we have concluded that whenever a judge imposes a more severe sentence upon 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," Id., p. 726, 89 S.Ct., p. 2081 and failing to find any such justification in the record, the Supreme Court ordered vacation of the second sentence.

The rationale of Pearce was extended to prosecutorial conduct in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In Blackledge the defendant was convicted in state court on a misdemeanor assault charge. When he exercised a statutorily granted right to demand trial De novo on appeal, the prosecutor obtained a felony assault indictment based upon the same conduct. Upon review before the Supreme Court it was held that the prosecution's unexplained "upping the ante", Id., p. 28, 94 S.Ct. 2098 violated the defendant's due process rights, even in the absence of any evidence that the prosecutor acted in bad faith or maliciously. Returning to the holding in Pearce, the court reiterated that since the fear of vindictiveness may deter the exercise of constitutional rights a defendant is entitled to be free of apprehension of retaliatory motivation on the part of state authorities in response to the exercise of such rights and that "Due process of law requires that such a potential for vindictiveness must not enter into North Carolina's two-tiered appellate process." Ibid.

In the course of the Blackledge opinion the court reviewed its holdings in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1973) and Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1972), each of which involved unsuccessful attempts by a defendant to have a greater sentence upon a second trial set aside under the decision of Pearce. In distinguishing those decisions the court observed that in Colten sentence was imposed by a different judge so that there was little possibility that "personal vindictiveness" was involved, while in Chaffin trial was...

To continue reading