U.S. v. Currie, 80-1835

• Decision Date: 10 February 1982
• Docket Number: No. 80-1835,80-1835
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James Edward CURRIE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1251

667 F.2d 1251

UNITED STATES of America, Plaintiff-Appellant, v. James Edward CURRIE, Defendant-Appellee.

No. 80-1835.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 7, 1981.

Decided Aug. 17, 1981.

As Modified Feb. 5, 1982.

Rehearing and Rehearing En Banc Denied Feb. 10, 1982.

Richard B. Kendall, Asst. U.S. Atty., Los Angeles, Cal., argued for plaintiff-appellant; Robert L. Brosio, Asst. U.S. Atty., Los Angeles, Cal., on brief.

Alan Zarky, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before NELSON and CANBY, Circuit Judges, and WILKINS, ^* District Judge.

PER CURIAM.

The United States, by information, charged the appellee with conversion of a stolen United States Treasury check having a value not in excess of $100.00. 18 U.S.C. § 641. Appellee was arraigned and the matter was set for trial before a United States Magistrate. Approximately one month before the date set for trial, an Assistant United States Attorney was assigned to prosecute the matter and discovery procedures began, but no plea bargaining took place. A week or so later, appellee's attorney notified the Assistant United States Attorney that his client intended to go to trial. Shortly thereafter the appellee's counsel was notified that the United States intended to seek an indictment of appellee charging him with a felony under the same statute upon which the information had been predicated. Indictment would increase appellee's maximum possible sentence from one year to ten years. Appellee was given one week, however, in which to plead guilty to the misdemeanor charge in exchange for which the United States would abandon its intent to indict him. When appellee refused to so plead he was indicted, but at a pretrial hearing the trial judge dismissed the indictment as the product of vindictive prosecution. A superseding information has since been entered against appellee. ¹ The United States appeals from the dismissal of the indictment.

In appealing the dismissal of the indictment the United States relies upon the recent United States Supreme Court case Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), arguing that this case stands for the "use of threatened reindictment as a bargaining chip in plea negotiations." Appellant's Opening Brief at 10. In support of its argument appellant points out the following factual congruencies between Bordenkircher and this case: (1) the prosecutors in both cases knew all the facts relied upon in seeking the indictment at the time the original, lesser charge was brought; (2) the same conduct was involved in both the lesser and the greater charges, and (3) the challenged indictment in both cases increased the defendants' sentence exposure.

Although we agree that these congruencies exist, there are also several distinguishing characteristics between Bordenkircher and this case.

First, the Bordenkircher Court noted that (w)hile the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do so was clearly expressed at the outset of plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty.

434 U.S. at 360, 98 S.Ct. at 666. In the instant case there were no plea negotiations prior to appellee's interposition of his not guilty plea, nor during many months thereafter. Thus, appellee cannot be said to have been "fully informed of the true terms of the offer when he made his decision to plead not guilty," id. nor at the outset of any plea negotiations following reasonably thereafter. ² In fact, no offer...