U.S. v. Krezdorn, No. 81-1404

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BROWN, GOLDBERG and POLITZ; GOLDBERG; JOHN R. BROWN
Citation693 F.2d 1221
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Herman V. KREZDORN, Defendant-Appellee.
Docket NumberNo. 81-1404
Decision Date23 December 1982

Page 1221

693 F.2d 1221
UNITED STATES of America, Plaintiff-Appellant,
v.
Herman V. KREZDORN, Defendant-Appellee.
No. 81-1404.
United States Court of Appeals,
Fifth Circuit.
Dec. 23, 1982.

Page 1223

LeRoy M. Jahn, Sidney Powell, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellant.

Verne F. Knickerbocker, Eagle Pass, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, GOLDBERG and POLITZ, Circuit Judges.

GOLDBERG, Circuit Judge:

In this appeal, we are called upon to review a finding of prosecutorial vindictiveness.

1. FACTS AND PROCEEDINGS BELOW

In 1979, Herman V. Krezdorn, a United States Immigration Inspector, was indicted on five counts of forging immigration documents in violation of 18 U.S.C. Sec. 1426(a). 1 The district court directed a verdict of acquittal on one count, and a jury convicted defendant on the remaining four counts. On appeal, this Court held that the district court erred in allowing the prosecution to introduce evidence of thirty-two additional forgeries not charged in the original indictment.

Page 1224

We therefore reversed the conviction. U.S. v. Krezdorn, 639 F.2d 1327 (5th Cir.1981). 2

Following this Court's action in "Krezdorn I," the Government reindicted defendant on the four forgery counts originally charged. The superseding indictment also charged Krezdorn with conspiracy 3 to forge immigration documents, in violation of 18 U.S.C. Sec. 371. The conspiracy charge added five years imprisonment and a ten thousand dollar fine to the potential punishment faced by the defendant, over and above the penalties for the four counts originally charged. The thirty-two forgeries found to be inadmissible at Krezdorn's first trial were alleged to be "overt acts" in furtherance of the conspiracy charged in the superseding indictment.

Defendant Krezdorn moved to dismiss the conspiracy charge on the grounds of prosecutorial vindictiveness. 4 The prosecutor denied any vindictive motive for the superseding indictment. An evidentiary hearing was held to resolve the conflicting claims. After hearing the testimony of the Assistant United States Attorney responsible for the case, the district court found that the prosecution was aware of all the facts giving rise to the conspiracy charge at the time the Government brought its original indictment, and that no new evidence had come to light since the first trial. The district court also found that the Government decided not to bring the conspiracy charge in the original indictment because to do so would have involved some administrative inconvenience. 5 Finally, the district court concluded that the conspiracy charge was added for the purpose of transforming the thirty-two additional forgeries from inadmissible extraneous evidence into evidence admissible as overt acts in a conspiracy between Krezdorn and Contreras. 6

Based on the facts, the district court concluded that defendant Krezdorn had established a prima facie case of "prosecutorial vindictiveness." The lower court also concluded that the Government had failed to explain the increased severity of the superseding indictment in terms sufficient to dispel the reasonable apprehension of retaliatory motive created by the addition of charges following appeal. Accordingly, the conspiracy count was dismissed. The Government then brought this appeal.

2. PROSECUTORIAL VINDICTIVENESS POST-GOODWIN

A prosecutor's decision to reindict a defendant is circumscribed by the Due Process Clause of the Constitution. Blackledge v. Perry, 417 U.S. 21, 26, 94 S.Ct. 2098, 2101, 40 L.Ed.2d 628 (1974). "To punish a person because he has done what the law allows him to do is a due process violation 'of the most basic sort.' " U.S. v. Goodwin, --- U.S. ----, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982), quoting Bordenkircher v.

Page 1225

Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978). Thus, whenever a prosecutor adds new charges to an indictment, a careful inquiry is necessary to determine that the new charges were not added to retaliate against the defendant for exercising statutory or Constitutional rights.

Following the Supreme Court's most recent addition to the doctrine of prosecutorial vindictiveness, U.S. v. Goodwin, supra, it is now clear that the nature of the court's inquiry into prosecutorial motive will depend upon whether new charges are added before or after a defendant's initial trial. Prior to Goodwin, the leading Supreme Court cases on prosecutorial vindictiveness were North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and Blackledge v. Perry, supra. Those cases established the proposition that a showing of bad faith or malice on the prosecutor's part was unnecessary to a finding of "prosecutorial vindictiveness." 7 In finding additional charges constitutionally impermissible even absent evidence of bad faith or malice, the Court in Blackledge stated,

The rationale of our judgment ... [is] not grounded upon the proposition that actual retaliatory motivation must invariably exist. Rather, ... '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 [prosecutor].'

Blackledge, supra 417 U.S. at 28, 94 S.Ct. at 2102, quoting North Carolina v. Pearce, supra. Taken together, Pearce and Blackledge have been interpreted as creating a "presumption" of prosecutorial vindictiveness. U.S. v. Goodwin, supra 102 S.Ct. at 2490. Under a Blackledge-derived presumption, a defendant need not prove that the prosecutor's decision to add new charges was motivated by "actual vindictiveness," that is, a subjective intent to punish the defendant for exercising his rights. Instead, the courts 8 have held that whenever a prosecutor brings more serious charges following the defendant's exercise of procedural rights, "vindictiveness" is presumed. This presumption can only be overcome by proof of some objective factor, such as the discovery of new evidence, which can explain or justify the prosecutor's decision. 9

In Goodwin, the Supreme Court explained that a presumption of vindictiveness is justified when a prosecutor increases charges prior to the retrial of a defendant occasioned by the defendant's successful exercise of a procedural right, such as the right to appeal, for two reasons. First, the increased charges are unlikely, at that point, to be based on new information or a

Page 1226

different approach to prosecutorial duty. 10 Secondly, "institutional biases inherent in the judicial system" disfavor the retrial of issues already decided. U.S. v. Goodwin, supra 102 S.Ct. at 2490-91. 11 Thus, when a prosecutor's decision to increase the number or severity of charges follows the defendant's exercise of a procedural right necessitating his retrial, the decision is likely to be improperly colored by the prosecutor's bias, even if only "subconscious," against retrial of decided issues. Id. 12 Thus, the likelihood of improper motivation justifies a presumption of prosecutorial vindictiveness in order to free defendants from the apprehension of retaliation for the exercise of statutory or constitutional rights. U.S. v. Goodwin, supra 102 S.Ct. at 2494.

However, the Court found that a prosecutor's decision to increase charges prior to a defendant's initial trial does not present a similar danger of improper motivation. The defendant in Goodwin was originally charged with several misdemeanor offenses. The case was handled by a prosecutor who was assigned to try misdemeanor cases before Magistrates. The defendant decided not to enter into a plea bargain, and requested a trial by jury in District Court. Responsibility for the case was then assumed by an Assistant United States Attorney, who obtained an indictment charging defendant with a felony arising out of the same incident upon which the earlier misdemeanor charge was based. Employing a presumption of prosecutorial vindictiveness, the Court of Appeals held that the Due Process Clause prohibited the Government from bringing more serious charges after the defendant had invoked his right to a jury trial. 13

The Supreme Court reversed, finding that the addition of charges prior to defendant's trial was not so likely to be tainted with improper motivation as to justify a presumption of prosecutorial vindictiveness. U.S. v. Goodwin, supra 102 S.Ct. at 2493. The Court reasoned that prior to trial, "the prosecutor's assessment of the proper extent of prosecution may not have crystallized." Id. A presumption of vindictiveness might unjustifiably hamper the prosecutor's discretion to increase charges when preparation and review of the case prior to trial indicated that additional prosecution was in society's interest. Id. Institutional biases against retrial of previously-decided cases are not likely to affect the prosecutor's reaction to the invocation of procedural rights prior to trial. Id. Since there is little likelihood of vindictiveness in pre-trial charging decisions, the Court concluded, a presumption of prosecutorial vindictiveness is not required to allay defendant's apprehension of retaliation for invoking rights. U.S. v. Goodwin, supra 102 S.Ct. at 2494. 14

Page 1227

In the instant case, the Government decided to increase the number of charges against Krezdorn following his successful appeal to this Court. Thus, this case falls squarely within the category of cases as to which the Supreme Court has stated that a presumption of prosecutorial vindictiveness is justified by the high probability that the charging decision was improperly motivated. All of the dangers of improper motivation are clearly present. Defendant was convicted by a jury on four of the five counts originally charged. He exercised his...

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13 practice notes
  • U.S. v. Henry, Nos. 81-4107
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 28, 1983
    ...104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). There have also been a number of cases in the Fifth Circuit. See United States v. Krezdorn, 693 F.2d 1221 (1982), vacated for en banc reconsideration, No. 81-1404 (5th Cir. Mar. 2, 1983); Frank v. Blackburn, 646 F.2d 873 (5th Cir.) (en banc), cert.......
  • United States v. Gervasi, No. 82 CR 635.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 16, 1983
    ...law in their attempts to see these defendants convicted. In support of their motion, the defendants rely on United States v. Krezdorn, 693 F.2d 1221 (5th Cir.1982); and United States v. Burt, 619 F.2d 831 (9th In Krezdorn, the defendant was tried for forging immigration documents and was co......
  • Rhymes v. State, No. 06-16-00222-CR
    • United States
    • Court of Appeals of Texas
    • December 12, 2017
    ...charging increase that is unrelated to the defendant's exercise of his legal right to appeal." Id. (citing United States v. Krezdorn , 693 F.2d 1221, 1229 (5th Cir. 1982) ). If the presumption does not apply, in order to 536 S.W.3d 100obtain relief the defendant must show actual vindictiven......
  • Pierce v. Ramsey Winch Co., No. 83-1804
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 20, 1985
    ...the course of an ... otherwise fairly litigated trial," to which Ramsey has drawn our attention, that a new trial is mandated. Meyers, 693 F.2d at 1221. With respect to the first alleged impropriety, we note that, contrary to the practice of some of the state courts within our circuit, fede......
  • Request a trial to view additional results
13 cases
  • U.S. v. Henry, Nos. 81-4107
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 28, 1983
    ...104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). There have also been a number of cases in the Fifth Circuit. See United States v. Krezdorn, 693 F.2d 1221 (1982), vacated for en banc reconsideration, No. 81-1404 (5th Cir. Mar. 2, 1983); Frank v. Blackburn, 646 F.2d 873 (5th Cir.) (en banc), cert.......
  • United States v. Gervasi, No. 82 CR 635.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 16, 1983
    ...law in their attempts to see these defendants convicted. In support of their motion, the defendants rely on United States v. Krezdorn, 693 F.2d 1221 (5th Cir.1982); and United States v. Burt, 619 F.2d 831 (9th In Krezdorn, the defendant was tried for forging immigration documents and was co......
  • Rhymes v. State, No. 06-16-00222-CR
    • United States
    • Court of Appeals of Texas
    • December 12, 2017
    ...charging increase that is unrelated to the defendant's exercise of his legal right to appeal." Id. (citing United States v. Krezdorn , 693 F.2d 1221, 1229 (5th Cir. 1982) ). If the presumption does not apply, in order to 536 S.W.3d 100obtain relief the defendant must show actual vindictiven......
  • Pierce v. Ramsey Winch Co., No. 83-1804
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 20, 1985
    ...the course of an ... otherwise fairly litigated trial," to which Ramsey has drawn our attention, that a new trial is mandated. Meyers, 693 F.2d at 1221. With respect to the first alleged impropriety, we note that, contrary to the practice of some of the state courts within our circuit, fede......
  • Request a trial to view additional results

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