U.S. v. Krezdorn

• Decision Date: 10 November 1983
• Docket Number: No. 81-1404,81-1404
• Citation: 718 F.2d 1360
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Herman V. KREZDORN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1360

718 F.2d 1360

UNITED STATES of America, Plaintiff-Appellant, v. Herman V. KREZDORN, Defendant-Appellee.

No. 81-1404.

United States Court of Appeals, Fifth Circuit.

Nov. 10, 1983.

Certiorari Denied Feb. 27, 1984.

See 104 S.Ct. 1416.

John E. Murphy, Sidney Powell, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellant.

Verne F. Knickerbocker, Eagle Pass, Tex., Paul E. Knisely, Austin, Tex., for defendant-appellee.

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

Before CLARK, Chief Judge, BROWN, GOLDBERG, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges^*.

CLARK, Chief Judge:

A prima facie case of prosecutorial vindictiveness arising from proof of the addition of a charge on remand following a successful appeal that suggested the added charge as a method of curing the error found may be rebutted by a factual showing of no vindictiveness. Despite findings of fact indicating that the prosecutor did not act vindictively, the district court dismissed the added charge. We reverse that dismissal and remand for further proceedings.

I

In the original indictment in this cause, Herman V. Krezdorn was charged in five separate substantive counts with forging another inspector's signature on Mexican border-crossing card applications for five members of the Ruiz family. The district court directed an acquittal on one count and the jury convicted Krezdorn on the remaining four counts. This court reversed Krezdorn's convictions. United States v. Krezdorn, 639 F.2d 1327 (5th Cir.1981). We held that the district court erred in admitting evidence of thirty-two additional forged border-crossing card applications allegedly prepared by Krezdorn but not charged in the indictment. Proof of the uncharged forgeries was ruled inadmissible under Fed.R.Evid. 404(b). A plan was not an element of the offense charged. Therefore, the forgeries were not included in the "plan or scheme" exception to the general rule that evidence of a defendant's "other crimes" is inadmissible. 639 F.2d at 1331. However, dicta in our opinion observed that "[t]he existence of a plan would be directly at issue in, for instance, a conspiracy charge." Id. at 1331 n. 7.

Upon remand, Krezdorn was reindicted on the four counts upon which he had previously been convicted. Krezdorn was also indicted for conspiracy to forge immigration documents in violation of 18 U.S.C. Sec. 371. The superseding indictment charged that Krezdorn conspired with Arnulfo Contreras to forge signatures on the five cards sold to the Ruiz family. The forgeries in the substantive counts were charged to be the overt acts in furtherance of the conspiracy. The new conspiracy charge increased by five years of imprisonment and $10,000 in fines the potential penalties that could be assessed under the four original counts.

Following an evidentiary hearing, the district court granted Krezdorn's motion and dismissed the conspiracy count. The court made the following findings of fact:

Because two prosecutors were involved in the case at various times, it is unclear exactly what evidence was in the possession of the government at the time that the original indictment was returned. Nevertheless, it is clear that the government knew of the involvement of Arnulfo Contreras prior to the return of the original indictment. The government decided not to indict Contreras originally, because he was a Mexican citizen; consequently, the government knew he could never be In having the superseding indictment returned, the government was not concerned with increasing the amount of punishment to which the defendant would be exposed. It is the prosecutor's impression that, even if the defendant is convicted of the conspiracy offense, he will not receive any punishment in excess of what he received after the first trial.^*

extradicted and, if indicted, would simply clutter up court records as a fugitive.

The primary, if not sole, purpose of the government in having a superseding indictment returned was to overcome the Fifth Circuit's objection to the introduction of the 32 extraneous forgeries. The government's purpose was to make evidence of these extraneous forgeries admissible as overt acts in a conspiracy between the defendant and Contreras.

The court concluded that Krezdorn established a prima facie case of prosecutorial vindictiveness that the government failed to rebut. A panel of this court affirmed the district court's decision. United States v. Krezdorn, 693 F.2d 1221 (5th Cir.1982).

The panel held that a presumption of prosecutorial vindictiveness arising from the substitution of "charges which increase the punishment to which a defendant is exposed for the same basic conduct" may be rebutted "only by showing that the decision to charge conspiracy was based upon new facts or evidence not known to the Government at the time of the original indictment." 693 F.2d at 1229-30. This holding was vacated by our action granting rehearing en banc. 5th Cir.Loc.R. 41.3.

The panel erroneously assumed that the original indictment charged Krezdorn with conspiring to forge the Ruiz border crossing applications. 693 F.2d at 1230. On this assumption, it held that the prosecutor had merely substituted a more serious charge for "the same basic criminal behavior." It held that the presumption of prosecutorial vindictiveness could only be overcome by proof of circumstances that did not exist at the time of the original indictment.

II

Prior precedents in the area of judicial and prosecutorial vindictiveness have detailed the prior opinions of the Supreme Court of the United States and this court. To focus the reader's recall here, it is not necessary to review those holdings in depth.

North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), held that an increased sentence imposed by a judge on retrial following appeal gives rise to a presumption of vindictiveness, which may unconstitutionally deter a defendant's due process right to appeal. To free the defendant of any apprehension that such a retaliatory motivation exists, the presumption can only be rebutted by requiring the judge to affirmatively state in the record reasons for his increased sentence based on information concerning objective, identifiable conduct occurring after the original sentence. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), held that a judge's imposition of an increased fine after appeal and retrial does not give rise to a presumption of vindictiveness when it occurs in the setting of a two-tier trial de novo system applicable to less severe crimes. In Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), a jury imposed an increased sentence on retrial. The Court held this action raised no presumption of vindictiveness. The Court reasoned that the second jury had no knowledge of the first sentence and no stake in acting to deter appeals.

In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the prosecutor changed a misdemeanor charge to a felony charge after a convicted defendant obtained a trial de novo. The Court held the prosecutor's action raised a presumption of vindictiveness that could only be rebutted by proof that the felony charge could not have been brought at the outset. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), held that a prosecutor's action in obtaining added charges when a defendant refused to plead gave rise to no presumption of vindictiveness. [T]he Due Process Clause is not offended by all possibilities of increased punishment ... but only by those that impose a realistic likelihood of "vindictiveness."

The Court observed that the action had occurred before trial and during plea bargain talks. In United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), the Court held that no presumption of vindictiveness was created when a United States attorney, acting before trial, obtained a felony indictment following the defendant's refusal to plead guilty to misdemeanor charges. The Court observed that there was the same "opportunity for vindictiveness" as had been present in Colten and Chaffin, which held such opportunity insufficient to justify the imposition of a prophylactic rule. Relying on the following quotation from Blackledge, the Court required the defendant to prove objectively that the prosecutor's charging decision was motivated by a desire to punish him for pursuing his appellate rights:

417 U.S. at 27, 94 S.Ct. at 2102, 40 L.Ed.2d 628.

The Fifth Circuit's most extensive consideration of prosecutorial vindictiveness occurred in two prior cases. Hardwick v. Doolittle, 558 F.2d 292 (5th Cir.1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978), was the first. After Hardwick's initial convictions on one robbery count and one assault count were set aside, the prosecutor obtained two robbery and two assault charges growing out of the same "spree of activities." The court distinguished Blackledge as involving the substitution of a more serious charge rather than the bringing of a new charge, and held that vindictiveness in fact was required to overcome the prosecutor's discretion. Hardwick also relied on the breadth of the prosecutor's charge decision discretion established in United States v. Cox, 342 F.2d 167 (5th Cir.) (en banc), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965).

Rather than use the procedural terminology of presumption and rebuttal, Hardwick spoke of a prima facie case made by showing the increase in charges, which the prosecutor could rebut by establishing that his reasons were other than to "punish a pesky defendant for exercising his legal rights." 558 F.2d at 301. The court expressly stated that the prosecutor could negate vindictiveness by proof of mistake or oversight in his initial action, a different approach to...