U.S. v. White

• Citation: 972 F.2d 16
• Decision Date: 03 August 1992
• Docket Number: D,No. 1632,1632
• Parties: UNITED STATES of America, Appellee, v. John WHITE, Defendant-Appellant. ocket 92-1072.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 16

972 F.2d 16

UNITED STATES of America, Appellee, v. John WHITE, Defendant-Appellant.

No. 1632, Docket 92-1072.

United States Court of Appeals, Second Circuit.

Argued May 29, 1992.

Decided Aug. 3, 1992.

Otto G. Obermaier, U.S. Atty., S.D.N.Y., for U.S. Richard E. Signorelli, Annmarie Levins, Asst. U.S. Attys., of counsel.

The Law Firm of Michael M. Milner, New York City, for John White, Michael M. Milner, Emily R. Daniel, Michele Stolls, of counsel.

Before: MINER, McLAUGHLIN, and RONEY ^*, Circuit Judges.

RONEY, Senior Circuit Judge:

John White was convicted of conspiracy to possess with intent to distribute heroin under 21 U.S.C. §§ 812, 841(a)(1), and 846. On appeal, White contends that the district court erred: in denying his motion to dismiss the indictment on the grounds of vindictive or selective prosecution, 768 F.Supp. 447; in denying his motion for a new trial based on newly discovered evidence that the Government's key witness perjured himself; and, in sentencing. We affirm.

White was arrested in September 1986 by Drug Enforcement Administration (DEA) agents on charges of possession with intent to distribute a controlled substance. The charges arose out of a narcotics investigation of Harry Smith. Although White was charged in state court, those charges were later dismissed.

The DEA seized White's vehicle at the time of his arrest. The federal authorities did not bring charges against him at that time. In 1987, White retained an attorney to assist in recovering his vehicle. In 1988, he brought an action in claims court to obtain the value of his vehicle. After the DEA notified White that they still had the vehicle, White brought an action in 1989 to set aside the forfeiture of his vehicle.

At a status conference, the district court indicated that the notice of forfeiture procedures the Government had used were unconstitutional. In 1990, the Government retracted its defense and commenced a new forfeiture action with new notice.

Apparently at some point after the status conference, the Government approached Smith about testifying against White in a federal prosecution for the narcotics charges. Smith agreed to cooperate. Assistant United States Attorney (AUSA) Signorelli, who also was handling White's forfeiture case, determined that there was probable cause to believe that in 1986 White had engaged in unprosecuted criminal conduct. In 1991, White was indicted by a federal grand jury on the present charges. After a jury trial, he was convicted and later sentenced.

Vindictive or Selective Prosecution

White sought a dismissal of the indictment on the ground that the prosecution was initiated in retaliation for his challenging the forfeiture of his vehicle. Although the decision as to whether to prosecute generally rests within the broad discretion of the prosecutor, Bordenkircher v Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978), the decision to prosecute violates due process when the prosecution is brought in retaliation for the defendant's exercise of his legal rights. Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974); United States v. Khan, 787 F.2d 28, 31 (2d Cir.1986). Although a vindictive motive is often difficult to prove, see North Carolina v. Pearce, 395 U.S. 711, 725 n. 20, 89 S.Ct. 2072, 2080 n. 20, 23 L.Ed.2d 656 (1969), one will be found where there is direct evidence of actual vindictiveness, or a rebuttable presumption of a vindictive motive may arise under certain circumstances. United States v. Goodwin, 457 U.S. 368, 373, 384 n. 19, 102 S.Ct. 2485, 2489, 2494 n. 19, 73 L.Ed.2d 74 (1982).

The district court correctly held that there is no basis for applying a rebuttable presumption of prosecutorial vindictiveness in this case. Such presumption stems from the decisions in Pearce and Blackledge where the Supreme Court was concerned with the danger that a prosecutor may be inclined to punish a defendant for obtaining a retrial by appeal. United States v. Goodwin, 457 U.S. 368, 377, 102 S.Ct. 2485, 2490, 73 L.Ed.2d 74 (1982).

White's case is similar to Goodwin, where the Court held that a pretrial decision to modify charges against a defendant, after the defendant decided not to plead guilty and go to trial, did not warrant a vindictiveness claim. 457 U.S. at 384, 102 S.Ct. at 2494. The Court recognized a pretrial/post-trial dichotomy, stating that the "possibility that a prosecutor would respond to a defendant's pretrial demand for a jury trial by bringing charges not in the public interest that could be explained only as a penalty imposed on the defendant is so unlikely that a presumption of vindictiveness certainly is not warranted." Id.

This Circuit has limited the application of such a presumption to prosecutions brought after post-conviction activity of defendants. See Lane v. Lord, 815 F.2d 876, 878 (2d Cir.1987). We have held that a "presumption of prosecutorial vindictiveness does not exist in a pretrial setting." United States v. Hinton, 703 F.2d 672, 678 (2d Cir.), cert. denied, 462 U.S. 1121, 103 S.Ct. 3091, 77 L.Ed.2d 1351 (1983). Application of a presumption of vindictiveness here would mean that the defendant's opposition to the Government's decision to seek forfeiture in any case could preclude the Government from bringing justifiable criminal charges. We refuse to so hold.

There being no presumption in favor of White which would shift the burden of proof to the Government, it is incumbent upon White to prove that the indictment was the product of vindictive retaliation or selective prosecution. Contrary to White's contention, there is insufficient evidence in the record to reverse the district court's finding that White was not charged with narcotics offenses in retaliation for attempting to get his car back.

White violated federal and state laws in selling illegal drugs. The state's 1986 decision not to prosecute White is unrelated to the federal Government's 1991 determination that there was probable cause to believe that White had committed narcotics offenses. Even though White can show that his forfeiture claim brought his unprosecuted activities to the prosecutor's attention, this showing does not establish vindictiveness. Cf. Hinton, 703 F.2d at 678-79. White's allegations that proof of vindictiveness may be found in alleged Government violations of its internal guidelines and alleged improper supervision of AUSA Signorelli are also insufficient. White has not come forward with proof of actual vindictiveness in the form of objective evidence that overcomes the presumption of legitimacy of the prosecutor's charging decision. See Goodwin, 457 U.S. at 384 n. 19, 102 S.Ct. at 2494 n. 19.

White likewise fails in his attempt to present a selective prosecution claim. To establish a prima facie case of selective prosecution, a defendant must establish

(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.

United States v. Moon, 718 F.2d 1210, 1229 (2d Cir.1983) (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984). White has not offered evidence to establish such a prima facie case.

Although White argues that an evidentiary hearing was required, he has placed no controlling facts in dispute to warrant a hearing. See United States v. Silvestri, 719 F.2d 577, 583 (2d Cir.1983); United States v. Gilbert, 668 F.2d 94, 97 (2d Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2014, 72 L.Ed.2d 469 (1982).

Perjury

White challenges the trial court's denial of his motion for a new trial based on the ground of newly discovered evidence: the supposed perjury of the Government's principal witness, Harry Smith, with respect to Smith's personal drug use. The motion was supported by two affidavits: one by White's attorney stating that he had attempted unsuccessfully to question Smith prior to trial, his motion to compel having been denied by the court; another by Glenn Mincey which simply stated that he was acquainted with Smith during the summers of 1990 and 1991 during which period he "observed Harry Smith using cocaine" at social gatherings. When questioned about his use of drugs after 1986, Smith had testified that in fact he had taken no drugs.

A motion for a new trial based on newly discovered evidence is granted only "if required in the interest of justice." Fed.R.Crim.P. 33. Several principles have been established for making this determination.

First, the motion will not be granted unless the "newly discovered evidence" could not with due diligence have been discovered before or during trial. Sanders v. Sullivan, 863 F.2d 218, 226 (2d Cir.1988); United States v. DiPaolo, 835 F.2d 46, 49 (2d Cir.1987). Although the district court held that the defendant did not meet this requirement, we do not rest our decision on that ground. Because there was no evidentiary hearing, the record does not show the circumstances under which Mincey's affidavit was obtained. Since it is not the use of the drugs but the alleged denial of use that would make this evidence material, it is difficult to evaluate whether defense counsel could have, or should have, developed this point prior to Smith's testimony.

Second, when the newly discovered evidence focuses on the perjury of a witness, a threshold inquiry is whether the evidence demonstrates that the witness in fact committed perjury. DiPaolo, 835 F.2d at 49-51. The district court observed the perjury was "by no means established or shown even to be likely." The Government argues that White failed to...