U.S. v. Andrews

• Decision Date: 30 September 1980
• Docket Number: No. 78-5166,78-5166
• Citation: 633 F.2d 449
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Tallice ANDREWS and Thurston Brooks, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 449

633 F.2d 449

UNITED STATES of America, Plaintiff-Appellant, v. Tallice ANDREWS and Thurston Brooks, Defendants-Appellees.

No. 78-5166.

United States Court of Appeals, Sixth Circuit.

Argued June 4, 1980.

Decided Sept. 30, 1980.

James K. Robinson, U. S. Atty., Detroit, Mich., for plaintiff-appellant.

John W. Tapp, Asst. Federal Defender, Detroit, Mich., for Brooks.

William L. Woodard, Richard R. Nelson, Kenneth R. Sasse, Detroit, Mich., for Andrews.

Before EDWARDS, Chief Judge, and WEICK, CELEBREZZE, LIVELY, ENGEL, KEITH, MERRITT, BROWN, KENNEDY, MARTIN, and JONES, Circuit Judges, en banc.

KEITH, Circuit Judge.

The simple and undisputed facts of this case present interesting questions regarding the limits of prosecutorial discretion. Specifically, we are called upon to apply the doctrine of "prosecutorial vindictiveness" outlined in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). A panel of this Court considered this question and produced three separate opinions without any consensus. United States v. Andrews, 612 F.2d 235 (6th Cir. 1979). Given the importance of the issue and the division of the panel, we granted the parties' cross-petitions for rehearing en banc.

FACTS

Tallice Andrews, Thurston Brooks and Fannie Braswell were arrested at Detroit's Metropolitan Airport on November 16, 1975. ¹ On November 8, 1976, they were jointly indicted for narcotics and firearms The district court, in a comprehensive opinion reported at 444 F.Supp. 1238 (E.D.Mich.1978), concluded that the conspiracy charge, added after defendants successfully pressed their bail appeal, was impermissible under Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The government appealed.

                offenses.  2 On December 29, 1976, defendants Andrews and Brooks were arraigned before a Magistrate on the offenses.  Both requested that they be released on bail pending trial, but the government was strongly opposed.  Apparently, the third defendant, Fannie Braswell, had turned state's evidence and had been threatened.  The government responded by placing Ms. Braswell in the federal witness protection program and urging that defendants Brooks and Andrews not be released on bail.  Based on testimony by the Assistant United States Attorney regarding the threats, the Magistrate denied bail and remanded the two defendants to federal custody.  On January 7, 1977, the jailed defendants appealed the Magistrate's decision to the district judge to whom the case was assigned.  The judge overturned the Magistrate's decision and the defendants were released on bond on January 11, 1977.  Two days later, on January 13, 1977, the Assistant United States Attorney sought and obtained a superseding indictment charging defendants with an additional conspiracy count.  3
                

A divided panel of this court reversed. 612 F.2d 253 (6th Cir. 1979). There was no unifying rationale among the members of the panel. Judge Green advanced a rebuttable prima-facie vindictiveness test and remanded to the district court for reconsideration in light of that test. Judge Merritt concurred "in the result and much of the reasoning of Judge Green's opinion for the court," but stated that prosecutorial vindictiveness issues should be restricted to "post trial prosecutorial conduct which undermines double jeopardy values." Judge Merritt's view called for outright reversal, not remand. The author of this opinion dissented. I advanced an overall balancing test, and, applying that test, would have affirmed the district court.

Upon rehearing en banc, a majority of the court has agreed on the views expressed herein.

I.

There are three Supreme Court cases which are relevant to our inquiry, all authored by Mr. Justice Stewart. First, is North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). There, the Court ruled that a trial judge could not resentence a defendant to a longer sentence than had been originally imposed where the defendant was convicted, sentenced, won reversal on appeal and was then reconvicted and resentenced. The Court advanced two reasons for its holding. First, "(d)ue process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." Second, "since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." Pearce, supra, 395 U.S. at 725, 89 S.Ct. at 2080. In order to effectively police vindictive judicial behavior, the Court advanced a "prophylactic rule." A stiffer re-sentencing could only occur where there were objective, on the record facts concerning conduct which took place after the initial sentencing. Id. at 726, 89 S.Ct. at 2081.

In two later cases, the Court declined to apply Pearce. In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), the defendant appealed a misdemeanor conviction to a trial de novo before a different judge. The Court had no problem with a stiffer sentence on retrial since "(t)he possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system." Id. at 116, 92 S.Ct. at 1960. The Court thought that there was little chance of "personal vindictiveness" before a different judge. In Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), the Court considered a situation where the petitioner was reconvicted and resentenced by a different jury after having an initial conviction overturned on appeal. The Court concluded that Pearce was inapplicable because "(t)he potential for such abuse of the sentencing process by the jury is ... de minimis in a properly controlled retrial." Id. at 26, 93 S.Ct. at 1982. The Court explained that "the jury, unlike the judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication." Id. at 27, 93 S.Ct. at 1983.

After this, the Court decided Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). There, a defendant was convicted on a misdemeanor assault charge in a state court of limited jurisdiction. The defendant exercised his statutory right to appeal to a trial de novo. The prosecutor responded by bringing a more serious felony assault charge against the defendant. This charge encompassed the same conduct for which the defendant had been charged with a misdemeanor in the lower court. The Supreme Court held that this conduct by the prosecutor violated due process. The Court contrasted Colten and Chaffin by noting that in those cases there was no "realistic likelihood of vindictiveness." Id. at 27, 94 S.Ct. at 2102. In the case before it, however, the Court concluded that the prosecutor had a "considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court." Id. This was because "such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant's conviction becomes final, and may even result in a formerly convicted defendant's going free." Id. The Court concluded by following the rationale of Pearce and applying it to the prosecutor's conduct:

There is, of course, no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry. The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that "since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." 395 U.S., at 725, (89 S.Ct. at 2080). We think it clear that the same considerations apply here. A person convicted of an offense is entitled to pursue his statutory right to a trial de novo without apprehension that the state will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. Blackledge, supra, 417 U.S. at 28, 94 S.Ct. at 2102.

II.

In the case at bar, the factual situation is different from that in Blackledge. First, this case presents a pre-trial situation where the government and the defendants wrangled over a bail motion. Second, in this case, the government added an additional conspiracy charge which encompassed the same basic conduct for which the defendants had been originally charged. In Pearce, the prosecutor substituted a more severe charge.

The policy questions which this case presents were the subject of a lively We think that Blackledge points the way to the standard which a court must test for in prosecutorial vindictiveness situations. That standard is whether, in the particular factual situation presented, there existed a "realistic likelihood of vindictiveness" for the prosecutor's augmentation of the charges.

                debate among the members of the original panel.  Prosecutorial vindictiveness issues have similarly divided other courts.  4 We will not repeat the extensive discussion conducted in the panel opinions.  Simply stated, we must reconcile two conflicting rules of law: 1) prosecutors have and need broad discretion to file charges where there is probable cause that someone has broken the law; 2) vindictive conduct by persons with the awesome power of prosecutors (and judges) is unacceptable and requires control
                

Blackledge was a clear case. The prosecutor had not just...