U.S. v. Hubert, 90-30003

• Decision Date: 10 August 1990
• Docket Number: No. 90-30003,90-30003
• Citation: 911 F.2d 739
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Edwin F. HUBERT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 739

911 F.2d 739

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee, v. Edwin F. HUBERT, Defendant-Appellant.

No. 90-30003.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 10, 1990. ^*

Decided Aug. 15, 1990.

Before RONEY, ^** FARRIS and FERNANDEZ, Circuit Judges.

MEMORANDUM ^***

Edwin F. Hubert appeals the district court's denial of his motion for an evidentiary hearing on his claim of vindictive prosecution. We affirm.

Concerns for vindictive prosecution stem from a due process interest that a person not be penalized for "doing what the law plainly allows him to do." United States v. Herrera, 640 F.2d 958, 961 (9th Cir.1981). "In almost every case in which courts have condemned prosecutions as vindictive, the defendant, after exercising some procedural right, had been confronted with a more serious or an additional charge arising out of the same nucleus of operative facts as the original charge." United States v. Robison, 644 F.2d 1270, 1272 (9th Cir.1981). That Hubert's indictment for a felon in possession of a firearm, followed from the same investigation and search warrant does not mean it is the same underlying event as the drug charge to which he pled guilty.

While there may be a presumption of vindictiveness based on the "totality of the circumstances surrounding the prosecutorial decision at issue," United States v. Griffin, 617 F.2d 1342, 1347 (9th Cir.), cert. denied, 449 U.S. 863 (1980), "the Court has [presumed vindictiveness] only in cases in which a reasonable likelihood of vindictiveness exists," United States v. Goodwin, 457 U.S. 368, 373 (1982).

Hubert does not satisfy the totality of the circumstances. He points to no rights that could be infringed or chilled by any alleged threats of prosecution, nor does he point to any increased charges due to the exercise of any procedural or constitutional rights. That the felon in possession charge did not come until sometime after the original search does not require a hearing on vindictive prosecution. See United States v. Allen, 699 F.2d 453 (9th Cir.1982) (not vindictive prosecution to pursue unrelated prosecution because penalty in a separate case was light).

AFFIRMED.

* The panel unanimously...