U.S. v. Molina-Iguado

• Citation: 894 F.2d 1452
• Decision Date: 15 February 1990
• Docket Number: No. 89-1375,MOLINA-IGUAD,D,89-1375
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ruthefendant-Appellant. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1452

894 F.2d 1452

UNITED STATES of America, Plaintiff-Appellee, v. Ruth MOLINA-IGUADO, Defendant-Appellant.

No. 89-1375

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Feb. 15, 1990.

Michael Ferrill, Cox & Smith, San Antonio, Tex. (Court-appointed), for defendant-appellant.

Ruth Molina-Iguado, Sierra Blanca, Tex., pro se.

LeRoy Morgan Jahn, Ronald F. Ederer, Asst. U.S. Attys., San Antonio, Tex., Robert J. Erickson, Atty., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Ruth Molina-Iguado appeals her conviction in a jury trial on two felony counts: (1) knowingly and intentionally importing a Schedule I controlled substance (marihuana) into the United States in violation of 21

U.S.C. Secs. 952(a) and 960(a)(1), and (2) unlawfully, knowingly, and intentionally possessing with intent to distribute marihuana in violation of 21 U.S.C. Sec. 841(a)(1). Molina-Iguado argues that the government violated her constitutional right to be free from vindictive prosecution by indicting her on two felony counts after she had entered into a plea agreement under which she would have pleaded guilty to only one misdemeanor count (violation of 21 U.S.C. Sec. 844(a)). She also asserts that the evidence presented at trial was legally insufficient to support a conviction. We affirm.

I.

PROSECUTORIAL VINDICTIVENESS

Facts.

The day after Molina-Iguado's October 23, 1988, arrest, the government filed a complaint with the federal magistrate charging her with violations of 21 U.S.C. Secs. 841(a)(1) and 952(a). On November 30, 1988, Molina-Iguado and the government entered into a duly signed and valid plea agreement, under which the government agreed to drop the felony charges in return for a plea of guilty to one misdemeanor count. The plea agreement made no mention of whether sentencing would be before a district judge or a magistrate.

At a hearing before the magistrate on December 9, 1988, Molina-Iguado, rather than pleading guilty, refused to consent to the jurisdiction of the magistrate and asserted her right under 18 U.S.C. Sec. 3401(b) to proceed before a district judge. In her section 3401(b) motion, Molina-Iguado waived her rights to jury trial and to have at least thirty days to prepare for trial. Molina-Iguado does not contend, and the record does not show, that she made the magistrate or the prosecutor aware of whether she still intended to plead guilty to the misdemeanor count.

On December 21, 1988, the government indicted Molina-Iguado on the two felony counts on which she was ultimately convicted. On December 30, 1988, Molina-Iguado pleaded not guilty to these new charges. Trial was set for February 6, 1989. On February 3, 1989, Molina-Iguado appeared before the district court at a scheduling hearing and filed a motion to enforce the plea agreement. At the hearing, the court granted the government's motion to withdraw the plea agreement and denied defense counsel's request for a hearing on the matter, stating,

No way. No way. I reject the plea agreement. You're not going to play this game. You can pass that on to all of your colleagues. If they make a deal with you, letting you plead to a misdemeanor instead of indicting you on a felony or making you go to trial on a felony, then you're going to do it in Magistrate's Court. I don't even have time for all the felony cases, much less misdemeanors. I'm not going to handle them.

Defendant's trial then proceeded as scheduled.

Discussion.

A.

In United States v. Krezdorn, 718 F.2d 1360, 1365 (5th Cir.1983) (en banc), cert. denied, 465 U.S. 1066, 104 S.Ct. 1416, 79 L.Ed.2d 742 (1984), we enunciated the following standard:

If the defendant challenges as vindictive a prosecutorial decision to increase the number or severity of charges following a successful appeal, the court must examine the prosecutor's actions in the context of the entire proceedings. If any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor's decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created. In trying the issue of vindictiveness, the prosecutor may offer proof of the sort suggested in [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) ] that as a matter of fact his actions were not vindictive. The burden of proof (by a preponderance of the evidence) remains on the defendant who raised the affirmative While claiming that evidence of actual vindictiveness by the government exists on the record, Molina-Iguado has failed to present any such evidence. ¹ Therefore, we look to "the prosecutor's actions in the context of the entire proceedings" to determine whether they give rise to a presumption of vindictiveness.

defense. If, on the other hand, the course of events provides no objective indication that would allay a reasonable apprehension by the defendant that the more serious charge was vindictive, i.e., inspired by a determination to 'punish a pesky defendant for exercising his legal rights,' a presumption of vindictiveness applies which cannot be overcome unless the government proves by a preponderance of the evidence that events occurring since the time of the original charge decision altered that initial exercise of the prosecutor's discretion.

Our decision in Krezdorn followed that of the Supreme Court in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), where the Court had indicated caution in applying the presumption to alleged prosecutorial vindictiveness in the pretrial setting. In Bordenkircher a prosecutor, confronted with a defendant who refused to plead to the charges in an indictment, threatened to seek an indictment on more serious charges, then carried out the threat. The Court held that the prosecutor's actions did not constitute punishment for the exercise of a legal right but only part of the give-and-take of plea negotiations, in an effort to convince the defendant to forego his right to trial.

Similarly, in United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), the prosecutor had charged the defendant with a felony after he refused to plead guilty to a misdemeanor. The Court declined to apply the presumption:

There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor's assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins--and certainly by the time a conviction has been obtained--it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.

In addition, a defendant before trial is expected to invoke procedural rights that inevitably impose some 'burden' on the prosecutor. Defense counsel routinely file pretrial motions to suppress evidence; to challenge the sufficiency and form of an indictment; to plead an affirmative defense; to request psychiatric services; to obtain access to government files; to be tried by jury. It is unrealistic to assume that a prosecutor's probable response to such motions is to seek to penalize and to deter. The invocation of procedural rights is an integral part of the adversary process in which our criminal justice system operates.

Thus, the timing of the prosecutor's action in this case suggests that a presumption of vindictiveness is not warranted. A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct. As we made clear in Bordenkircher, the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.

Id. at 381-82, 102 S.Ct. at 2492-93 (footnotes omitted).

Molina-Iguado's invocation of her section 3401(b) rights falls within the category of procedural rights that a defendant might be expected to invoke before trial and that inevitably impose some "burden" upon the prosecutor. See Goodwin, 457 U.S. at 381, 102 S.Ct. at 2492-93. "It is unrealistic to assume that a prosecutor's probable response to such motions is to seek to penalize and to deter." Id. Because the danger of prosecutorial vindictiveness "lay not in the possibility that a defendant might be deterred from the exercise of a legal right ... but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction," Bordenkircher, 434 U.S. at 363, 98 S.Ct. at 667-68, and because we look for a "reasonable likelihood of vindictiveness," Goodwin, 457 U.S. at 373, 102 S.Ct. at 2488, an additional indictment in response to the exercise of the section 3401(b) right is particularly unlikely to reflect vindictiveness.

If the prosecutor believed that Molina-Iguado still intended to plead guilty to the misdemeanor, the prosecutorial resources implicated by Molina-Iguado's decision were minimal. The prosecutor would need only to appear at one additional hearing. Not only does "the...