646 F.2d 384 (9th Cir. 1981), 80-1405, United States v. Hollywood Motor Car Co., Inc.

Docket Nº:80-1405, 80-1409.
Citation:646 F.2d 384
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. HOLLYWOOD MOTOR CAR COMPANY, INC., Frederic Michael Bernstein, and Terrance Quatkemeyer, Defendants-Appellants.
Case Date:May 26, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 384

646 F.2d 384 (9th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,

v.

HOLLYWOOD MOTOR CAR COMPANY, INC., Frederic Michael

Bernstein, and Terrance Quatkemeyer, Defendants-Appellants.

Nos. 80-1405, 80-1409.

United States Court of Appeals, Ninth Circuit

May 26, 1981

        Argued and Submitted Nov. 4, 1980.

Page 385

        Thomas R. Sheridan, Los Angeles, Cal., for defendants-appellants.

        Molly Munger, Asst. U.S. Atty., Los Angeles, Cal., argued for plaintiff-appellee; Andrea Sheridan Ordin, U.S. Atty., Los Angeles, Cal., on brief.

        Appeal from the United States District Court for the Central District of California.

        Before CHOY and TANG, Circuit Judges, and HANSON, [*] District Judge.

        CHOY, Circuit Judge:

        This is a consolidated appeal from the district court's denial of a motion to dismiss the indictment on the ground of vindictive prosecution. The question on this appeal is whether a case of vindictive prosecution is established when the Government threatens a defendant with enhanced charges if he exercises his right to request a change of venue and then does enhance the charges even though the Government subsequently dismisses several of the charges. We find that a vindictive prosecution case is established and reverse the decision of the district court and remand for dismissal of the superseding indictment.

       I. Facts

        Hollywood Motor Car Company, Inc., Frederic Bernstein, and Terrance Quatkemeyer ("appellants") were indicted in the Eastern District of Kentucky on two counts: conspiracy and wrongful receipt and transportation of an unlawfully imported Ferrari automobile. 1 The conspiracy count alleged as overt acts four false statements to customs agents in connection with four Ferraris. The two counts carried a possible combined penalty of 10 years and $20,000 in fines.

        Appellants moved for a change of venue to the Central District of California. Before the motion was heard, an Assistant United States Attorney and a United States Customs Agent threatened that the Government would add new counts to the indictment if appellants pursued their motion for change of venue. 2 Appellants pressed the motion, however, and obtained a change of venue.

        Appellants were rearraigned in the Central District of California. Four days later, an Assistant United States Attorney obtained a superseding indictment, charging appellants with four new substantive counts of making false statements, as well as the two counts in the original indictment. The new indictment exposed appellants to a possible 18 years imprisonment and $40,000 in fines. 3

        At a subsequent status conference to discuss pretrial motions, appellants advised the

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court and the Government that they intended to challenge the indictment on the ground of vindictive prosecution. The Assistant United States Attorney conceded that prosecutors from the Eastern District of Kentucky had requested the superseding indictment but she stated that she was already considering dismissing several of the counts before the status conference was held. 4

        On the day after the status conference, the Government moved to dismiss the original conspiracy count and two of the four new counts relating to the false statements. The district court dismissed the counts on May 8, 1980, and set trial for June 17, 1980.

        On May 19, 1980, appellants moved to dismiss the indictment for vindictive prosecution. After a hearing, the district court denied the motion, without stating its reasons. Appellants Hollywood Motor Car and Frederic Bernstein and appellant Terrance Quatkemeyer filed separate notices of appeal from the denial of the motion. At their request, the district court vacated the trial date. The Government requested that the district court set trial for the next available date and filed an emergency motion for summary affirmance of the district court's order. An expedited briefing schedule was imposed by order of this court on July 3, 1980. The Government also moved to consolidate the two appeals. On August 5, 1980, this court granted the Government's motion to consolidate but denied its motion for summary affirmance.

       II. Jurisdiction

        This court has held that the denial of a motion to dismiss based on the ground of vindictive prosecution is immediately appealable as a final decision under 28 U.S.C. § 1291. United States v. Burt, 619 F.2d 831, 835 (9th Cir. 1980); United States v. Griffin, 617 F.2d 1342, 1343-46 (9th Cir.) cert. denied, -- U.S. --, 101 S.Ct. 167, 66 L.Ed.2d 80 (1980).

       III. Vindictive Prosecution Charge

        The right to due process of law is violated where the Government increases the severity of alleged charges in response to the exercise of constitutional or statutory rights. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Burt, supra, at 836; United States v. DeMarco, 550 F.2d 1224, 1227 (9th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 85 (1977). Vindictive prosecution is generally found where the Government has occasion to re-indict or re-try a defendant after the exercise of a procedural right. United States v. Burt, supra, at 836.

        In United States v. DeMarco, supra, this court held that a defendant's due process...

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