U.S. v. Gallegos-Curiel

• Citation: 681 F.2d 1164
• Decision Date: 21 July 1982
• Docket Number: GALLEGOS-CURIE,No. 81-1258,D,81-1258
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Agustinefendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1164

681 F.2d 1164

UNITED STATES of America, Plaintiff-Appellant, v. Agustin GALLEGOS-CURIEL, Defendant-Appellee.

No. 81-1258.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 16, 1981.

Decided July 21, 1982.

Gerald S. Frank, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellant.

Bernardo P. Velasco, Asst. Federal Public Defender, Tucson, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before WALLACE and KENNEDY, Circuit Judges, and HOFFMAN, ^* District Judge.

KENNEDY, Circuit Judge:

This case requires us to examine a ruling based on the claim of vindictive prosecution. The district court dismissed a felony indictment for illegal entry on the ground of presumed vindictiveness because the indictment followed entry of a not guilty plea to a misdemeanor charge at an initial appearance before the magistrate. The Government appeals. We reverse. ¹

In accordance with a long-standing agreement between the Immigration and Naturalization Service ("INS") and the Arizona United States Attorney, designed for a heavy volume of illegal entry cases, INS has the authority to file misdemeanor illegal entry complaints for later prosecution by the U.S. Attorney. Felony complaints for illegal entry, though, require prior approval by the U.S. Attorney.

On March 1, 1981, immigration agents apprehended Gallegos-Curiel, the appellee here, for entering the country illegally. The next day an immigration agent prepared and filed a complaint charging appellee with misdemeanor illegal entry under 8 U.S.C. § 1325 (1976), and presented appellee before a magistrate, with counsel. ² Appellee entered a plea of not guilty at the initial appearance.

When the U.S. Attorney's office received the trial setting order from the magistrate a few days later, it reviewed appellee's complete file, including his prior non-immigration record. A copy of that record had not been included in the file before the immigration agent who issued the misdemeanor complaint. ³ After considering appellee's complete prior record of both immigration and non-immigration violations, the Assistant U.S. Attorney sought an indictment for felony illegal entry under 8 U.S.C. § 1325 (1976). ⁴ The grand jury issued the indictment on March 10, 1981.

In the district court, appellee filed a motion to dismiss the felony indictment on the ground of vindictive prosecution, claiming that the charge against him was raised to a felony simply because he had exercised a procedural right, that is, entry of a not guilty plea to the misdemeanor charge. The district court granted the motion and dismissed the felony indictment. In accepting the vindictive prosecution claim, the district court concluded that the INS agent could have had access to the non-immigration record, and that the U.S. Attorney's office would not have reviewed appellee's file if he had pled guilty to the misdemeanor. We must decide whether vindictiveness can be inferred from the challenged prosecutorial conduct.

The doctrine of vindictive prosecution must not be misapplied by blurring the distinction between what is actual retaliation and what is presumed. The presumption applies only to the extent it reflects the very real likelihood of actual vindictiveness.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court acknowledged that a defendant may not be punished for successfully challenging his conviction, id. at 723-24, 89 S.Ct. at 2079, and the Court for the first time developed the doctrine of presumed vindictiveness in recognition of the fact that "(t)he existence of a retaliatory motivation would, of course, be extremely difficult to prove in any individual case," id. at 725 n.20, 89 S.Ct. at 2080 n.20. In order "to assure the absence of such a (retaliatory) motivation," id. at 726, 89 S.Ct. at 2081, the Court held that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must appear, and if no such objective information appears, vindictiveness can be presumed.

In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Court considered the Pearce rule of presumed retaliation in the context of prosecutorial behavior. There the prosecutor filed a felony indictment against a defendant after he had exercised a statutory right to trial de novo in state superior court following his misdemeanor conviction in an inferior court without a jury. The Court held "the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case." 417 U.S. at 27, 94 S.Ct. at 2102. The Court emphasized that the premise of the Pearce inferred vindictiveness rule "is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of 'vindictiveness.' " Id.

When there is no evidence of actual vindictiveness and the only question is whether it must be presumed, cases involving increased charges or punishments after trial are to be sharply distinguished from cases in which the prosecution increases charges in the course of pretrial proceedings. This has been established by the Supreme Court in United States v. Goodwin, ---- U.S. ----, 102 S.Ct. 2485, 72 L.Ed.2d ---- (1982). In Goodwin the defendant was arraigned before a magistrate on misdemeanor and petty offenses. After plea negotiations with the prosecutor, the defendant requested a jury trial in district court. After the case was assigned to an Assistant United States Attorney, the defendant was indicted and convicted on a felony charge. He alleged vindictive prosecution. The Supreme Court held that a presumption of vindictiveness was not warranted in that pretrial setting. The Court analyzed the timing and the nature of the right which the defendant had exercised and concluded that it did not present a realistic likelihood of vindictiveness.

First, the Court recognized that before the trial has begun, "the prosecutor's assessment of the proper extent of prosecution may not have crystallized." --- U.S. at ---- - ----, 102 S.Ct. at 2493. Because the prosecutor may properly reevaluate information as the case develops, he "should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct." Id. at ----, 102 S.Ct. at 2493 (footnote omitted). Furthermore, because before trial many procedural rights are asserted quite routinely, as "an integral part of the adversary process", it would be "unrealistic to assume that a prosecutor's probable response to such motions is to seek to penalize and to deter," even if they do burden the prosecution. Id.

After considering the timing of the defendant's action, the Court in Goodwin analyzed the nature of the right asserted. Although the plea of not guilty forced the Government to prove its case, the Court found that the plea did not warrant a presumption that subsequent modification of the charges was unjustified, even when the not guilty plea was coupled with the request for and burdens imposed by a jury trial. The not guilty plea and request for jury trial did not force the duplicative expenditure of prosecutorial resources, and hence did not invoke the institutional bias against the retrial of decided issues that might motivate a vindictive reaction, as did the asserted rights in Pearce and Blackledge. Id. at ---- - ----, 102 S.Ct. at 2494. The Court concluded that the severe presumption of vindictive prosecution was not warranted.

The holding in Goodwin and the analysis developed from Pearce to Goodwin dictate our conclusion that a presumption of vindictiveness is not warranted in this case. This circuit has applied the presumption of vindictiveness doctrine in the form of the "appearance of vindictiveness" test. Absent direct evidence of an expressed hostility or threat to the defendant for having exercised a constitutional right, see, e.g., United States v. Hollywood Motor Car Co., 646 F.2d 384 (9th Cir. 1981), rev'd on other grounds, ---- U.S. ----, 102 S.Ct. 3081, 72 L.Ed.2d ---- (1982) (per curiam); United States v. DeMarco, 550 F.2d 1224 (9th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 85 (1977), to establish a claim of vindictive prosecution the defendant must make an initial showing that charges of increased severity were filed because the accused exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness. See United States v. Burt, 619 F.2d 831, 836 (9th Cir. 1980); United States v. Griffin, 617 F.2d 1342, 1346 (9th Cir.), cert. denied, 449 U.S. 863, 101 S.Ct. 167, 66 L.Ed.2d 80 (1980). If there is a sufficient prima facie showing of vindictiveness, the burden shifts to the prosecution to show that any increase in the severity of the charges did not stem from a vindictive motive, or was justified by independent reasons or intervening circumstances that dispel the appearance of vindictiveness. United States v. Burt, 619 F.2d at 836; United States v. Griffin, 617 F.2d at 1347.

The principle of vindictive prosecution is not a fiction, either in concept or in its implementation. The appearance of vindictiveness test is not a per se rule striking down any increased charge following any act by the defendant. The appearance of vindictiveness does not embody the post hoc ergo propter hoc fallacy, see United States v. Robison, 644 F.2d 1270, 1273 (9th Cir. 1981); United States v. Linton, 655 F.2d 930 (9th Cir. 1980) (per curiam), cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d 301 (1981); the link of vindictiveness cannot be inferred simply because the prosecutor's actions followed the exercise of a right, or...