U.S. v. Meyer
| Citation | 258 U.S.App.D.C. 263,810 F.2d 1242 |
| Decision Date | 30 April 1987 |
| Docket Number | Nos. 85-6169,85-6171 and 85-6172,s. 85-6169 |
| Parties | , 55 USLW 2479 UNITED STATES of America, Appellant, v. Christine MEYER, et al. UNITED STATES of America, Appellant, v. Theresa FITZGIBBON, et al. UNITED STATES of America, Appellant, v. Virginia SENDERS, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Criminal Nos. 85-00329-01, 85-00330-01 and 85-00331-01).
Barry Coburn, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Robert E. McDaniel, Asst. U.S. Attys., Washington, D.C., were on brief, for appellant.
Daniel Ellenbogen, Washington, D.C. (appointed by this court) for appellees, Fitzgibbon, et al.
Sherry A. Quirk (appointed by this court), with whom Richard L. Cys and James F. Hibey, Washington, D.C., were on brief, for appellee, Judith Hand.
Mindy Washington, pro se, for appellee.
Before WALD, Chief Judge, MIKVA, Circuit Judge, and LEIGHTON, * Senior District Judge.
Opinion for the Court filed by Circuit Judge MIKVA.
In this case, we review a district court's decision to dismiss several informations on the ground of prosecutorial vindictiveness. The government contends that the district court's finding of vindictiveness is wrong as a matter of law and perilous as a matter of policy. The government further contends that even if vindictive prosecution occurred, the remedy that the district court imposed is unwarranted. We decline to accept these claims. According proper deference to the lower court, we affirm its order to dismiss.
On April 22, 1985, officers of the United States Park Police arrested approximately 200 political demonstrators outside of the White House. The officers gave each demonstrator a U.S. Park Police Citation Form, issued pursuant to the District of Columbia's "magistrates' citation system." Each form charged the recipient with "demonstrating without a permit" in violation of 36 C.F.R. Sec. 50.19 and described two options for disposing of the charge. According to the form, the arrestee could either forfeit $50 in full satisfaction of the charge or proceed to trial. The maximum penalty on the specified charge was a $500 fine and six months' incarceration.
Although most of the demonstrators chose to forfeit $50, some elected to proceed to trial. At their arraignments, which took place on May 29, June 21, and June 28, 1985, these persons learned that they would have to defend themselves against a further charge. The government had filed two-count informations against the demonstrators who had chosen to exercise their right to trial. Count II of the informations contained the original charge of demonstrating without a permit. Count I contained an additional charge of obstructing the sidewalks adjacent to the White House in violation of 36 C.F.R. Sec. 50.30, which also carries a maximum penalty of six months' imprisonment and a $500 fine. The government extended a plea offer to some of the defendants, under which the government would dismiss Count I of the information and recommend a sentence of six months' unsupervised probation on Count II if the defendant pleaded no contest to the latter count. A number of the defendants accepted this plea arrangement, but 36 chose to go to trial.
On July 30, 1985, counsel for the defendants moved to dismiss the informations on the ground of vindictive prosecution. Counsel also requested a jury trial, noting that the addition of a second charge and the enhanced potential sentence had triggered the defendants' jury trial right. The district court granted the motion for a jury trial and found that defendants' counsel had raised sufficient question concerning prosecutorial vindictiveness to warrant a separate hearing on the issue.
At the hearing on vindictiveness, which occurred on September 11, 1985, the prosecutor immediately moved to dismiss Count I (the added count) of each of the informations. Counsel for the defendants objected, claiming that the sole purpose of the motion was to deprive the defendants of their right to a jury trial. The district court, however, granted the prosecutor's motion to dismiss the added count. The court then heard argument on the defendants' motion to dismiss the informations (which now contained only the original count) on the ground of prosecutorial vindictiveness. The court found that the prosecutor had added a count to the informations solely because the defendants had exercised their right to trial and that such a course of action constituted vindictive prosecution. The court chose to remedy this prosecutorial misconduct by dismissing the informations. After the court denied the government's motion for reconsideration, see Joint Appendix at 99-102, the government filed this appeal.
Our first task is to determine the appropriate standard of review in a vindictive prosecution case. Although this court has never faced the question, we find the matter fairly easy to resolve. An appellate court must use the clearly erroneous standard to review a trial court's finding of vindictive prosecution. The clearly erroneous standard ordinarily governs review of a judge's findings in a criminal case on issues other than the defendant's guilt, see Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 1360, 10 L.Ed.2d 501 (1963); Jackson v. United States, 353 F.2d 862, 864-65 (D.C.Cir.1965); the standard governs review not only when the judge's findings are purely factual, but also when they involve mixed questions of law and fact, see United States v. Hart, 546 F.2d 798, 801-02 (9th Cir.1976) (en banc). We can perceive no reason for departing from this general rule in cases of vindictive prosecution, accord United States v. Spiesz, 689 F.2d 1326, 1329 (9th Cir.1982); an appellate court may overturn a judge's finding of vindictiveness only when a review of all of the evidence leaves the court "with the definite and firm conviction that a mistake has been committed," see United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948) (). A lower court's decision to dismiss an information or indictment, once a finding of vindictive prosecution has been appropriately made, is subject to a different standard of review. The choice of remedy for governmental misconduct rests within the sound discretion of the lower court; an appellate court may reverse an order remedying such misconduct only if the order constitutes an abuse of discretion. See United States v. Artuso, 618 F.2d 192, 196 (2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct. 164, 66 L.Ed.2d 77 (1980). Thus, in reviewing the district court's order to dismiss the informations on the ground of prosecutorial vindictiveness, we must ask a pair of questions: first, whether the finding of vindictiveness is clearly erroneous; and second, if the finding is not clearly erroneous, whether the decision to dismiss the informations constitutes an abuse of the trial court's discretion.
"Prosecutorial vindictiveness" is a term of art with a precise and limited meaning. The term refers to a situation in which the government acts against a defendant in response to the defendant's prior exercise of constitutional or statutory rights. See United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982). In other words, a prosecutorial action is "vindictive" only if designed to penalize a defendant for invoking legally protected rights.
The Supreme Court has established two ways in which a defendant may demonstrate prosecutorial vindictiveness. First, a defendant may show "actual vindictiveness"--that is, he may prove through objective evidence that a prosecutor acted in order to punish him for standing on his legal rights. See id. at 380-81, 384 & n. 19, 102 S.Ct. at 2492, 2494 & n. 19. This showing is, of course, exceedingly difficult to make. Second, a defendant may in certain circumstances rely on a presumption of vindictiveness: when the facts indicate "a realistic likelihood of 'vindictiveness[,]' " a presumption will arise obliging the government to come forward with objective evidence justifying the prosecutorial action. See Blackledge v. Perry, 417 U.S. 21, 27-29, 29 n. 7, 94 S.Ct. 2098, 2102-03, 2103 n. 7, 40 L.Ed.2d 628 (1974). If the government produces such evidence, the defendant's only hope is to prove that the justification is pretextual and that actual vindictiveness has occurred. But if the government fails to present such evidence, the presumption stands and the court must find that the prosecutor acted vindictively.
The district court in this case held that the defendants had shown actual vindictiveness, but we decline to reach this question. We uphold the ultimate finding--that prosecutorial vindictiveness entered into this case--as not clearly erroneous because we believe that the defendants presented evidence that would allow a court at least to find that a presumption of vindictiveness applied. The government declined to come forward with any evidence that would erase such a presumption and thus doomed itself to the critical finding.
The government contends that a presumption of prosecutorial vindictiveness can never apply in a pretrial setting and rests this claim on the Supreme Court's opinion in United States v. Goodwin. A magistrate had arraigned Goodwin on several misdemeanor charges, and an attorney from the Department of Justice, who had authority to try only petty crime and misdemeanor cases, took over the case. Plea negotiations ensued, but proved fruitless, and Goodwin asserted his right to a jury trial. Subsequently, an Assistant U.S. Attorney assumed responsibility for the case, and he proceeded to indict...
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