U.S. v. Alvarado-Sandoval, ALVARADO-SANDOVA

Citation557 F.2d 645
Decision Date29 March 1977
Docket NumberNo. 76-3267,ALVARADO-SANDOVA,D,76-3267
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jorgeefendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Michael L. Lipman, Asst. U.S. Atty., San Diego, Cal., on the brief, Terry J. Knoepp, U.S. Atty., Michael L. Lipman Asst. U.S. Atty., San Diego, Cal., argued for plaintiff-appellee.

Before HUFSTEDLER, GOODWIN and ANDERSON, Circuit Judges.

PER CURIAM.

Appellant was arraigned before a United States Magistrate on June 11, 1976 and informed that a complaint had been filed charging him with a misdemeanor violation of 8 U.S.C. § 1325. Defense counsel was not prepared at that time to enter a plea because he wished to investigate the possibility of raising a question about the legality of the search. The magistrate stated from the bench that he understood defendant's position concerning the possibility of motions and set the case for further proceedings. Thereafter, the United States Attorney advised the court and defense counsel that the Government would be considering the case for a possible felony indictment. On June 17, 1976 a two-count indictment was filed in the United States District Court charging appellant with felony violations of 8 U.S.C. §§ 1325 and 1326. On August 5, 1976 appellant moved the court to dismiss the indictment as the product of a violation of the principles established in 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); and United States v. Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976). The district court denied the motion. Appellant was subsequently tried and convicted of the felony charges.

Appearance of vindictiveness, not vindictiveness in fact, is the touchstone of Blackledge, Pearce and Ruesga-Martinez. The Government attempts to distinguish Ruesga-Martinez, which is otherwise identical, on the ground that the appellant in this case did not affirmatively assert a right which then precipitated a "raising of the ante" by the Government. The failure to interpose a formal motion before the magistrate, does not effectively distinguish this case from Ruesga-Martinez. Appellant's counsel made plain his intention to proceed under the misdemeanor charge. Here, as in Ruesga-Martinez, the appearance of vindictiveness existed. It was only after the appellant, through his counsel, indicated that no plea would be...

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  • U.S. v. Andrews
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 15, 1980
    ...Ninth Circuit to invalidate added as well as substituted charges. United States v. DeMarco, 550 F.8d 1224 (1977); United States v. Alvarado-Sandoval, 557 F.2d 645 (1977); United States v. Groves, 571 F.2d 450. Insofar as the Jamison ruling and the foregoing Ninth Circuit authorities can be ......
  • Marshall v. Lansing, 86-5737
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 13, 1988
    ...presumption of retaliation. United States v. Carrasquillo, 732 F.2d 1160, 1162 n. 3 (3d Cir.1984) (quoting United States v. Alvarado-Sandoval, 557 F.2d 645 (9th Cir.1977) (other citations omitted)). No actual finding of retaliation by the sentencing judge is required. 732 F.2d at 1162 n. We......
  • U.S. v. Gilliss
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 9, 1981
    ...the basis of Pearce.United States v. Tucker, 581 F.2d 602, 605 n.4 (7th Cir. 1978) (sentencing), citing United States v. Alvarado-Sandoval, 557 F.2d 645, 645 (9th Cir. 1977) (per curiam) (prosecutorial vindictiveness); United States v. Floyd, 519 F.2d 1031, 1034-35 (5th Cir. 1975) (sentenci......
  • U.S. v. Andrews, 78-5166
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 30, 1980
    ...dispelling the resultant presumption of vindictiveness. United States v. Groves, 571 F.2d 450 (9th Cir. 1978); United States v. Alvarado-Sandoval, 557 F.2d 645 (9th Cir. 1977); 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)......
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