People v. Ryan

• Citation: 545 N.W.2d 612,451 Mich. 30
• Decision Date: 22 March 1996
• Docket Number: No. 6,Docket No. 100054,6
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Thomas J. RYAN, Defendant-Appellee. Calendar
• Court: Supreme Court of Michigan

Page 612

545 N.W.2d 612

451 Mich. 30

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Thomas J. RYAN, Defendant-Appellee.

Docket No. 100054.

Calendar No. 6.

Supreme Court of Michigan.

Argued Oct. 11, 1995.

Decided March 22, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, Detroit, for the people.

Richard M. Lustig, Birmingham, for defendant-appellee.

Richard B. Ginsberg, Detroit, amicus curiae for Criminal Defense Attorneys of Michigan.

WEAVER, Justice.

At issue in this appeal is whether the federal Drug Enforcement Agency's referral of defendant to state prosecution rendered the state prosecution vindictive. This Court has addressed the issue of vindictive prosecution where a sentence is increased after a defendant's appeal from a criminal conviction, ¹ but has not directly addressed alleged actual vindictiveness arising in the dual-sovereign pretrial context. ²

We find that the defendant in this case failed to affirmatively prove actual vindictiveness because he did not show that the Wayne County prosecutor, by prosecuting under Michigan law, sought to penalize defendant for exercising his constitutional right to counsel. Nor did defendant present any evidence of untoward collusion between the federal investigation and the state prosecution. The Court of Appeals is reversed and the defendant's conviction reinstated.

I

Defendant, Thomas J. Ryan, was arrested with a kilogram of cocaine in Livonia, Michigan on the evening of March 21, 1987, as part of a federal drug investigation. Local Livonia police support was solicited to facilitate defendant's arrest. Federal agent Hubert Coleman questioned defendant at the scene and told him that if he cooperated with the federal investigation, Agent Coleman would pursue federal rather than state charges. This "deal" was favorable to defendant because a conviction in the State of Michigan for possession with intent to deliver 650 grams of cocaine carries a mandatory life sentence, while federal prosecution for the same act carries only a possible sentence of twenty-four to thirty-six months in jail.

Defendant was taken to the Livonia police station where federal agents played audiotapes involving defendant's conversations with a Cleveland contact. Later that night, Agent Coleman traveled to Cleveland in an unsuccessful attempt to locate an additional two kilograms of cocaine thought to be connected to defendant's operation.

At some point during questioning, defendant requested counsel. ³ Because defendant's attorney, Kenneth Cockrel, was unavailable, attorney James Feinberg responded to defendant's call. However, attorney Feinberg made it clear, at least to defendant, that he would not represent defendant if he cooperated with the federal investigation. ⁴ Attorney Cockrel arrived the next day to represent defendant, but found that the "deal" was off the table. ⁵

Defendant's case was referred to the Wayne County prosecutor, and he was arraigned on March 23, 1987, two days after his arrest. Defendant was convicted in state court of possession with intent to deliver more than 650 grams of cocaine and sentenced to life in prison.

The Court of Appeals affirmed his conviction, but found that the defendant had established a prima facie case of actual governmental vindictiveness and, therefore, remanded for an evidentiary hearing. Unpublished opinion per curiam, issued May 9, 1991 (Docket No. 113547). The Court of Appeals did not retain jurisdiction.

On remand, the trial court heard testimony from federal agents, attorney James Feinberg, and the defendant. The trial court found that Agent Coleman went to Cleveland only because of information provided by defendant after defendant requested counsel but before defendant spoke to counsel, that Agent Coleman knew that defendant did not yet have an attorney when Agent Coleman went to Cleveland, and that defendant did not have the opportunity to consult with an attorney before the deal was removed from the table.

On the basis of these findings the trial court concluded: "DEA Agents, particularly, supervising agent Hubert Colman [sic], indulged in a forbidden form of forum shopping in this instance ... that as a result of that alone, defendant was prosecuted in the criminal justice system of the State of Michigan." Detroit Recorder's Court, Docket No. 87-03365, pp. 12-13. This, the trial court concluded, "not only denied defendant his right to counsel but violated his rights under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution as well." Id., p. 14.

The Court of Appeals affirmed the trial court's dismissal in an unpublished opinion per curiam, entered February 24, 1994 (Docket No. 144052). We granted leave by order entered January 5, 1995. 448 Mich. 852, 528 N.W.2d 730.

II

It is a violation of due process to punish a person for asserting a protected statutory or constitutional right. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); People v. Goeddeke, 174 Mich.App. 534, 536, 436 N.W.2d 407 (1988). "To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort ...." Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978).

Such punishment is referred to as prosecutorial vindictiveness. There are two types of prosecutorial vindictiveness, presumed vindictiveness and actual vindictiveness. Actual vindictiveness will be found only where objective evidence of an "expressed hostility or threat" ⁶ suggests that the defendant was deliberately penalized for his exercise of a procedural, statutory, or constitutional right. See, e.g., United States v. Goodwin, 457 U.S. 368, 374, 380, n. 12, 102 S.Ct. 2485, 2489, 2492, n. 12, 73 L.Ed.2d 74 (1982). ⁷ The burden is on the defendant to affirmatively establish actual vindictiveness. People v. Watts, 149 Mich.App. 502, 511, 386 N.W.2d 565 (1986). The mere threat of additional charges during plea negotiations does not amount to actual vindictiveness where bringing the additional charges is within the prosecutor's charging discretion. ⁸

The Court of Appeals found that defendant established a prima facie case of actual vindictiveness and was entitled to an evidentiary hearing. ⁹ The Court relied on

assertions by defendant that the drug enforcement administration threatened to bring charges in Michigan and ultimately did so after defendant requested assistance of counsel in deciding whether to cooperate with the administration ....[ ¹⁰]

We agree that the evidence is undisputed that federal agent Coleman told defendant during initial questioning that if defendant refused to cooperate, the case would be referred for state prosecution. It is also undisputed that defendant requested counsel. Sometime thereafter, before defendant met with Attorney Cockrel, the "deal" was withdrawn and the case was referred by the federal agent to state prosecutors. However, this sequence of events does not dictate a conclusion that the defendant was vindictively deprived of his constitutional right to counsel.

We find that the mere threat to refer the case for state prosecution does not amount to objective evidence of hostile motive because it came from an individual who lacked authority to prohibit the Wayne County prosecutor from exercising his legitimate power to prosecute violations of Michigan law.

Implicit in the trial court's reasoning is that the state would have been unable to prosecute defendant if the federal government had also pursued charges. But the state has independent authority to prosecute crimes within its borders. In In re Illova, 351 Mich. 204, 209, 88 N.W.2d 589 (1958) (rev'd on other grounds), this Court stated:

When a defendant has violated both State and Federal laws he is liable to each sovereign and subject to prosecution by each. It is not his privilege to choose which shall first inflict punishment. If any comity between sovereigns is violated, the offended sovereign may complain, not the defendant.

Thus, the Wayne County prosecutor had independent authority to pursue charges against this defendant regardless of any "deal" suggested by the federal agent. It is also well accepted that the vindictiveness of one sovereign is not normally chargeable to the independent decision to prosecute by a separate sovereign because the likelihood of prosecutorial abuse is minimized. United States v. Schoolcraft, 879 F.2d 64, 68 (C.A.3, 1989), citing United States v. Ballester, 763 F.2d 368, 370 (C.A.9, 1985).

For example, in United States v. Schoolcraft, supra, the defendant argued that a state prosecutor had acted vindictively when he referred a federal firearms offense to the United States attorney. The defendant made two allegations: first, the defendant claimed that the state prosecutor made the referral because the federal penalties were stiffer than the state's penalties; and, second, he alleged that the state prosecutor, as private counsel, had represented parties that settled a civil suit favorable to defendant. At the conclusion of the civil suit, the prosecutor allegedly stated that he would "nail [defendant] to the wall" if he ever came before him. Id. at 67.

On these facts, the United States Court of Appeals for the Third Circuit found no vindictive prosecution. The court stated that it would not focus on the actions of the state prosecutor, but rather on the United States attorney who prosecuted defendant's case.

The Court of Appeals employed a similar analysis in United States v. Fulford, 825 F.2d 3 (C.A.3, 1987). In Fulford, the defendant asserted that the state prosecutor "badgered" and "pressured" a federal agent into seeking an indictment against the defendant for counterfeiting. The defendant claimed that the state prosecutor...