United States v. Butler

• Citation: 414 F. Supp. 394
• Decision Date: 20 May 1976
• Docket Number: Crim. No. H-75-57.
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Marcus C. BUTLER.

414 F. Supp. 394

UNITED STATES of America v. Marcus C. BUTLER.

Crim. No. H-75-57.

United States District Court, D. Connecticut.

May 20, 1976.

M. Hatcher Norris, Asst. U. S. Atty., Hartford, Conn., for plaintiff.

David S. Golub, Stamford, Conn., for defendant.

RULING ON DEFENDANT'S MOTION TO DISMISS

BLUMENFELD, District Judge.

The defendant was arrested on April 25, 1975, as he attempted to conclude a cocaine transaction with an undercover operative of the Drug Enforcement Agency. On May 8, 1975, he was indicted for three offenses allegedly committed on April 10 and 17, 1975, involving the distribution of cocaine "samples" to the undercover agent. Plea negotiations broke down during the summer, and the defendant was again indicted on October 22, 1975, for the two offenses allegedly committed at the time of his arrest. The defendant has moved to dismiss counts four and five, based on the April 25 offenses, and now consolidated with the earlier indictment.¹

In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Supreme Court explicitly applied the due process principles set forth in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), forbidding increased penalties which inhibit the exercise of constitutional rights, to prosecutorial conduct. The defendant alleges that the government's decision in this case, to seek and obtain an additional indictment once it was clear that the plea discussions had broken down and that the defendant would exercise his constitutional right to a jury trial,² similarly contravenes the due process guarantees of the fifth amendment.

This court does not disagree with the general argument made by the defendant. Certainly prosecutorial discretion can be abused, and the bringing of enhanced charges can violate due process. United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir. 1970), cert. denied, 402 U.S. 914, 91 S.Ct. 1396, 28 L.Ed.2d 656 (1971). Indeed, as Judge McGowan noted in United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974), the principle enunciated in Pearce and Blackledge does not depend upon a showing of actual vindictiveness by the court or prosecutor, but merely the possibility of it, i. e., an "apprehension on the defendant's part of receiving a vindictively-imposed penalty for the assertion of rights." 505 F.2d at 415. (Emphasis in original).

Thus, in United States v. Gerard, 491 F.2d 1300 (9th Cir. 1974), a case on which the defendant relies quite heavily, the court ordered the dismissal of an additional count which charged the defendant with a firearms offense. That count was added after the defendant withdrew his guilty plea to one of the original conspiracy and counterfeiting counts. The court held Pearce applicable because neither the court nor the prosecutor had learned any new facts, subsequent to the hearing at which the guilty plea was withdrawn, which would have justified the addition of a new charge based upon the same transaction.³

However, there is a crucial distinction between the facts of this case and those present in Jamison, Gerard, and the other cases in the Pearce line.⁴ The October 22 indictment charged the defendant with the possession and distribution of cocaine on the date of his arrest, not on the two earlier occasions on which he allegedly distributed "samples." In Jamison the same facts underlay both the first and second degree murder charges. Similarly, in Gerard the defendant possessed the weapon at the same time he committed the offenses originally charged — in fact, that was the essence of the weapons charge. Here the second indictment was based on separate acts by the defendant, occurring one and two weeks after the acts charged in the original three-count indictment. The situation is thus analogous to that described by Judge Smith in United States v. Mallah, 503 F.2d 971 (2d Cir. 1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975):

"Here, the heroin counts are based upon acts which are distinct from charges previously brought against appellant. The government's decision to prosecute appellant for counts two and six is well within the traditionally broad ambit of prosecutorial discretion."⁵

Indeed, the possibility that a prosecutor might, in certain circumstances, be permitted to bring additional charges, even though based on the very acts already the subject of an indictment, was explicitly recognized in Jamison. There the court suggested that subsequent developments, e. g. the death of an assault victim or the discovery of new evidence, might justify such charges. And in Gerard the majority specifically cautioned against locking the government into a plea bargain, while the defendant remains free to withdraw.⁶ In this case, of course, there was never even a bargain. The prosecutor simply indicated that, in return for a guilty plea to one of the three outstanding counts, he would dismiss the other two counts and would not seek an indictment for the aborted April 25 transaction. For this court to accept the defendant's invitation to hold the prosecutor to this unilateral offer — which he himself never accepted — would leave future prosecutors open to the sort of defense gamesmanship against which Judge Kaufman cautioned in United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir. 1970), cert. denied, 402 U.S. 914, 91 S.Ct. 1396, 28 L.Ed.2d 656 (1971). Some consideration must be given to the public interest in the due enforcement of the criminal laws. The grand jury has found probable case to believe that the defendant violated the law on April 25, and there is a strong public interest in his being prosecuted for those actions. Cf. United States v. Mallah, 503 F.2d 971, 988-89 (2d Cir. 1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975). Accordingly, I conclude that because an entirely different transaction underlay the second indictment this situation does not present the "potential for vindictiveness" condemned in Blackledge as violative of due process.⁷

The defendant's alternative ground for dismissal, that the second indictment was returned after...