U.S. v. Goodwin, 79-5351

• Decision Date: 09 January 1981
• Docket Number: No. 79-5351,79-5351
• Parties: UNITED STATES of America, Appellee, v. Learley Reed GOODWIN, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 250

637 F.2d 250

UNITED STATES of America, Appellee, v. Learley Reed GOODWIN, Appellant.

No. 79-5351.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 14, 1980.

Decided Jan. 9, 1981.

Paul W. Spence, Acting Federal Public Defender, Baltimore, Md., for appellant.

Edward M. Norton, Jr., Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., on brief), for appellee.

Before WINTER, BUTZNER, and WIDENER, Circuit Judges.

WINTER, Circuit Judge:

Convicted of forcible assault of a federal officer in violation of 18 U.S.C. § 111 and fleeing and eluding a police officer in violation of 18 U.S.C. §§ 7 and 13 and Md. Code Ann., Transp. Art., § 21-904, Learley Reed Goodwin appeals. We hold that his conviction of violating § 111 must be reversed, because, under the circumstances of this case, he was denied due process of law when he was indicted and tried for that offense only after he exercised his right to a jury trial on the petty offense and misdemeanor charges originally lodged against him for the same conduct. We see no infirmity, however, in his other conviction, and we affirm the judgment entered thereon.

I.

Early in the evening of February 2, 1976, defendant was stopped for speeding on the Baltimore-Washington Parkway by a United States Park policeman. After defendant stopped, he emerged from his car to talk to the policeman. The policeman returned with him to the passenger side of defendant's car, and, after obtaining information from defendant's license and registration the officer directed his flashlight into defendant's car. The officer saw a clear plastic bag underneath the armrest next to the driver's seat. He then asked defendant to get into the car and to raise the armrest. Defendant did so, but, as he uncovered the bag, he grabbed it, threw it onto the floor, placed the car into gear and rapidly accelerated. As the car started forward, it "fishtailed", striking the officer and knocking him onto the back of the car and then onto the highway. When the officer recovered himself, he returned to his car and, with lights flashing and siren sounding, pursued defendant at a speed reaching ninety-five miles per hour. Nevertheless, defendant eluded the officer in heavy traffic in the District of Columbia.

The next day the officer filed a complaint in the district court charging defendant with various petty offenses and misdemeanors, including assault. A United States Magistrate issued a warrant for defendant's arrest, and on March 11, 1976, defendant was arrested. On March 30, 1976, he was brought before a magistrate. At that hearing defendant sought to have the charges against him dismissed by testifying that he was in Atlanta, Georgia when the incident on the parkway occurred. The magistrate, however, found probable cause, released defendant on personal recognizance, and set a trial date of April 29, 1976.

Defendant did not appear for trial on that date. Later he was found in custody in another jurisdiction on other charges. He was returned to Maryland on May 24, 1979, for trial. At that time the government was represented by a trial attorney from the Department of Justice who was on special detail for two weeks to try petty offenses and misdemeanors before the magistrate. The attorney was familiar with the court papers as well as the officer's incident report, and she had conducted plea negotiations with defendant's lawyer. These negotiations had come to naught because defendant declined to plead and instead elected a jury trial. During the discussions, the prosecutor did not mention the possibility that the United States would seek to have defendant indicted for the felony of forcible assault on a federal officer (18 U.S.C. § 111).

As a result of defendant's election to be tried by a jury, his case was transferred to the district court for trial. The United States Attorney then sought and obtained the indictment charging defendant with a violation of 18 U.S.C. § 111. By affidavit the United States Attorney spelled out his reasons for this action: (1) defendant's conduct on February 2, 1976 was considered to be a serious violation of law, (2) defendant had a lengthy history of violent crime, (3) defendant's conduct on February 2, 1976 was considered to be related to major narcotics transactions, (4) defendant was believed to have committed perjury when he testified at his preliminary hearing that he was in Atlanta, Georgia at the time of the incident on the Baltimore-Washington Parkway, and (5) defendant had failed to appear for trial on April 29, 1976.

Defendant was convicted on the felony charge under 18 U.S.C. § 111 as well as the misdemeanor charge of fleeing or eluding a police officer in violation of Maryland law. His motion to set aside the verdict with respect to § 111 on the ground of prosecutorial vindictiveness was denied on the merits, the district court ruling that there was good cause why the motion was not filed pre-trial as ordinarily required by Rule 12, F.R.Crim.P.

II.

On this record we readily conclude that the prosecutor did not act with actual vindictiveness in seeking a felony indictment. We must nevertheless decide if the felony prosecution was improper where, as is obvious here, it was not instituted until after defendant elected to be tried by a jury on lesser charges arising from the same conduct, even though the facts which motivated the prosecutor to seek the indictment were available to the government before plea bargaining was conducted and before defendant elected to exercise his right to a jury trial.

The answer to the issue which confronts us is found in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); and United States v. Johnson, 537 F.2d 1170 (4 Cir. 1976), where we construed and applied Pearce and Blackledge. Briefly stated, Pearce held that the due process clause protects a defendant from both actual vindictiveness and the fear of retaliation for exercising his right to appeal. Thus, Pearce held that a defendant convicted on retrial after having successfully attacked his first conviction could not be subjected to a more severe sentence except upon "objective information concerning identifiable conduct" occurring after the time of the original sentence. 395 U.S. at 726, 89 S.Ct. at 2081. Blackledge applied this principle to the prosecutor in a case where a defendant requested a de novo trial in a court of record following a misdemeanor conviction in a magistrate's court. It held that the prosecutor could not constitutionally respond to a defendant's invoking his statutory right of appeal by bringing a more serious charge against him prior to the trial de novo, at least where the basis for the more serious charge did not arise after the original conviction. In Blackledge, the court specifically noted that there was no evidence of actual prosecutorial vindictiveness. Nevertheless, the court found a violation of due process since the circumstances of the case presented "a realistic likelihood of 'vindictiveness.' " 417 U.S. at 27, 94 S.Ct. at 2102. In Johnson we held that the due process guarantee against actual and potential prosecutorial vindictiveness prohibited the government from bringing more serious charges against a defendant who was successful in upsetting his guilty pleas to some of the charges for which he was originally indicted, notwithstanding that the record did not establish that the prosecutor maliciously sought the second indictment. We stressed that the rationale of Pearce and Blackledge was that, since the fear of prosecutorial vindictiveness, as well as actual vindictiveness, had a chilling effect on a defendant's right to appeal, to attack his conviction collaterally, or to be tried de novo, the due process clause required that a defendant be freed of the apprehension of such a retaliatory motivation as well as actual retaliation.

Applied to this case, this well-established principle manifestly requires that defendant's felony conviction be set aside. Defendant had a constitutional right to a jury trial on the misdemeanor and petty offense charges. The due process clause would not permit retaliation for the exercise of that right. Under Blackledge, we need not determine whether retaliation actually occurred in this case. It is enough that the circumstances surrounding the felony indictment give rise to a genuine risk of retaliation. Lest exercise of the right to a jury trial be chilled, the due process clause requires that defendant be freed of the apprehension of retaliation by prohibiting the bringing of more serious charges, once the right was exercised, at least where there is no showing that the charges could not have been brought before defendant made his election for a jury trial.

We turn to the government's arguments as to why we should reach a different conclusion. First, the government contends that the more recent Supreme Court decision in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), undercuts defendant's reliance on the apprehension of vindictiveness as a basis for finding a due process violation. In Bordenkircher, the Court held that a prosecutor does not violate due process by threatening to increase charges in the course of plea bargaining and then following up on that threat after plea negotiations break down. Bordenkircher is easily distinguishable from Blackledge and from the present case. In Bordenkircher the prosecutor's intent to press for more serious charges was made known at the outset of negotiations, and the Court explicitly limited its holding to that factual situation:

This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant's insistence on pleading not guilty. As a practical...