U.S. v. Mays, 83-3472

• Decision Date: 13 August 1984
• Docket Number: No. 83-3472,83-3472
• Citation: 738 F.2d 1188
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfonso MAYS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1188

738 F.2d 1188

UNITED STATES of America, Plaintiff-Appellee, v. Alfonso MAYS, Defendant-Appellant.

No. 83-3472.

United States Court of Appeals, Eleventh Circuit.

Aug. 13, 1984.

H. Jay Stevens, Federal Public Defender, Orlando, Fla., for defendant-appellant.

Paul J. Moriarty, Asst. U.S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HENDERSON and CLARK, Circuit Judges, and ATKINS ^*, District Judge.

PER CURIAM:

The sole issue on this appeal is whether a threat by a prosecutor to increase the charges against a defendant who refuses to plead guilty following a mistrial on an original indictment constitutes prosecutorial vindictiveness.

The facts are undisputed. Initially, a grand jury in the District Court for the Middle District of Florida returned a one count indictment accusing the appellant, Alfonso Mays, of aiding and abetting another to utter a fraudulently endorsed United States Treasury check. After a trial for that offense, the jury was unable to reach a verdict, and the trial judge declared a mistrial at the instance of the defendant.

After the grant of the mistrial, the assistant United States Attorney advised the defendant's attorney that the government would seek a superseding indictment containing additional counts if Mays did not enter a plea of guilty to the initial uttering count. Mays refused to plead guilty. The government then obtained a superseding indictment alleging three criminal violations. Count Two realleged the initial uttering offense. Count One accused Mays of forgery of the payee's name on the check and Count Three charged Mays with theft of the check.

Prior to the trial on the superseding indictment, Mays moved to dismiss Counts One and Three on the ground of prosecutorial vindictiveness. The district court conducted a hearing on the motion at which the government and the defendant stipulated to the communications which had transpired after the mistrial. The government presented no evidence of the prosecutor's reasons for bringing the additional charges. It simply stated that the additional counts grew out of the same transaction as the original offense. Mays claimed that this conduct amounted to prosecutorial vindictiveness. The district court held that the defendant failed to establish such vindictiveness and denied the motion to dismiss.

At the trial of the superseding indictment, the jury found the defendant guilty of Count One--forgery of the payee's name. At the close of the government's case-in-chief, the district court granted the defendant's motion for judgment of acquittal as to Counts Two and Three, concluding that the evidence was insufficient to convict on Count Two (the charge in the original indictment) and that Count Three failed to state an offense under the relevant code section.

Before us, Mays urges that prosecutorial vindictiveness was apparent from circumstances surrounding the return of the superseding indictment and seeks a reversal of his conviction. The government, on the other hand, contends that no presumption of prosecutorial vindictiveness arises from this sequence of events and that there is no actual evidence of vindictiveness shown by Mays.

The Supreme Court has addressed the issue of prosecutorial vindictiveness in the past, although it has never been confronted with this precise fact situation. Two decisions of the Court deal particularly with vindictiveness as it applies to the enhancement of penalties and charges after an appeal.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Court invalidated an increased sentence imposed after a retrial following a successful appeal, holding that the enhanced sentence gave rise to a presumption of vindictiveness. The Court was concerned that such a sentencing practice might unconstitutionally deter a defendant's due process right to appeal. It held that the trial court could avoid the presumption of a retaliatory motive by affirmatively stating in the record objective, identifiable conduct which occurred after the original sentence and justified the enhanced penalty.

The reasoning of Pearce was emphasized in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), where the prosecutor converted a misdemeanor charge to one for a felony after a convicted defendant obtained a trial de novo under the appellate procedure available to him. The court decided that this conduct raised a presumption of vindictiveness that could only be rebutted by proof that the felony charge could not have been brought at the outset.

It is clear from these cases that the exercise of constitutional rights in seeking further review following a conviction cannot be abridged by the prosecution. In a pre-trial, setting, as opposed to appellate situations, however, the Court has viewed prosecutorial actions resulting in the enhancement of charges with less alarm.

In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Court found that a prosecutor's threatening, and later obtaining, added charges when the defendant refused to plead guilty did not evoke a presumption of vindictiveness, observing that the conduct occurred before trial and during plea bargain talks.

Similarly, 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 arose when a United States Attorney, before trial, obtained a felony indictment...