United States v. Chagra

• Citation: 638 F. Supp. 1389
• Decision Date: 26 February 1986
• Docket Number: No. SA-82-CR-57(4).,SA-82-CR-57(4).
• Parties: UNITED STATES of America, Plaintiff, v. Elizabeth Nichols CHAGRA, Defendant.
• Court: U.S. District Court — Western District of Texas

638 F. Supp. 1389

UNITED STATES of America, Plaintiff, v. Elizabeth Nichols CHAGRA, Defendant.

No. SA-82-CR-57(4).

United States District Court, W.D. Texas, San Antonio Division.

February 26, 1986.

COPYRIGHT MATERIAL OMITTED

W. Ray Jahn, Asst. U.S. Atty., San Antonio, Tex., for plaintiff.

Larry Zinn, Warren Burnett, San Antonio, Tex., for defendant.

MEMORANDUM OPINION

SESSIONS, Chief Judge.

ON THIS DATE came on to be considered the motion of the Defendant, Elizabeth Nichols Chagra, to dismiss the superseding indictment in the above-styled and numbered cause, and to dismiss the original indictment.

I INTRODUCTION

On December 13, 1985, the Defendant filed a motion to dismiss both the original and superseding indictments in the above-styled and numbered cause. On December 23, 1985, the Government filed a terse response. After reviewing the originally submitted briefs, on January 8, 1986, the Court ordered that the Government and Defendant submit supplemental briefs. On January 13, 1986, the Defendant and Government filed supplemental briefs. On January 31, 1986, the Court entered an Order denying the Defendant's motion to dismiss the superseding and original indictments in the above-styled and numbered cause. This memorandum opinion details the Court's analysis of the issues raised by the Defendant in her motion to dismiss and the Court's resolution thereof.

II PROSECUTORIAL VINDICTIVENESS

Defendant argues first that the original and superseding indictments should be dismissed due to prosecutorial misconduct. Defendant's entire argument is set forth below:

The superseding indictment is a product of prosecutorial misconduct in that the prosecution sought to deny Defendant a speedy trial. Because this error infects the entire proceeding, Defendant seeks dismissal of all pending indictments.

Defendant's Motion to Dismiss Indictments at 2. In support of the motion to dismiss based upon prosecutorial misconduct, Defendant's brief in its entirety states only that "defendant relies on the Sixth Amendment of the United States Constitution." Defendant's Supplemental Brief in Support of the Motion to Dismiss Indictments at 3-4. Finally, at the January 8, 1986 hearing on pending motions, the Defendant additionally advanced the argument that the motion to dismiss indictments should be granted because the superseding indictment requires a lesser quantum of proof.

The Sixth Amendment to the United States Constitution provides that:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S. Const. amend. VI. The Court is puzzled by the Defendant's citation of the Sixth Amendment to support her claims that the indictment should be dismissed for prosecutorial misconduct. To the extent that Defendant argues a violation of her speedy trial right under the Constitution or the United States Code, 18 U.S.C. § 3161 et seq., the Court addressed those concerns in its Order entered January 6, 1986, where the Court granted Defendant's motion for a speedy trial, subject only to the statutory guidelines mandated by 18 U.S.C. § 3161 et seq. As the Court has granted Defendant's motion for a speedy trial, the Court will deny the motion to dismiss based upon the speculative claim, unsubstantiated by any evidence, that the Government sought to delay Defendant's trial by returning the superseding indictment.

Defendant also argued at the January 8, 1986 motions hearing that the Court should find the Government guilty of prosecutorial vindictiveness because it caused a superseding indictment to be returned that contained a lesser included offense which allegedly would be easier for the Government to prove. At the hearing, Defendant's counsel sought to establish in cross-examination of Assistant United States Attorney Ray Jahn that the quantum of proof required by the charges in the superseding indictment was less than that required by the original indictment, because conspiracy to commit second degree murder does not require a finding of premeditation. Although Defendant's counsel failed to develop this point, the Court believes that Defendant argues that the prosecution's exercise of discretion in bringing a lesser included offense is vindictive because it is more likely to result in conviction. To the extent that Defendant makes this argument, the Court believes it is more properly urged under the Fifth Amendment due process clause, and not the Sixth Amendment as urged in her brief. See Comment, Two Models of Prosecutorial Vindictiveness, 17 Ga.L.Rev. 467 (1983); see also United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); United States v. Cole, 755 F.2d 748 (11th Cir.1985); United States v. Chagra, 669 F.2d 241 (5th Cir.), reh'g denied, 673 F.2d 1321, cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982).

The constitutional authority to "take care that the laws are faithfully executed" is a substantive matter textually committed in the Constitution to the executive branch, U.S. Const. art. II, § 3; United States v. Hamm, 659 F.2d 624, 628 (5th Cir.1981) (en banc), and the authority of the executive branch to enforce the law in a selective fashion is not subject to legal challenge absent proof by the defendant that the Government has exercised its discretion upon an invidious basis such as race. United States v. Batchelder, 442 U.S. 114, 123-25 & n. 9, 99 S.Ct. 2198, 2204 & n. 9, 60 L.Ed.2d 755 (1979); Bordenkircher v. Hayes, supra, 434 U.S. at 364, 98 S.Ct. at 668-69 (1978); Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962); Comment, Two Models of Prosecutorial Vindictiveness, supra at 482-85.

As a procedural matter, the Government may obtain a superseding indictment against a defendant at any time prior to trial, and may select the indictment under which to proceed at trial. United States v. Stricklin, 591 F.2d 1112, 1115 n. 1 (5th Cir.), reh'g denied, 598 F.2d 620 (en banc), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979) (collecting cases). At the same time, however, the Government may not exercise its prosecutorial authority in order to punish a defendant in retaliation for his exercise of his rights rather than to further a legitimate law enforcement interest. Blackledge v. Perry, supra; United States v. Chagra, supra; United States v. Walker, 514 F.Supp. 294, 311-13, 316-23 (E.D.La.1981). The due process clause establishes this limitation on the Government's charging authority as part of the principle forbidding the Government from imposing punishment upon innocent conduct. United States v. Walker, supra, at 316-19.

The Government's decision to "up the ante" against a defendant by filing new charges after he has taken some step in his defense may constitute an impermissible punishment in some cases, see, e.g., Blackledge v. Perry, supra, but the Government may proceed with its new charges where the purpose for its charging decision can be traced to a legitimate, non-vindictive rationale, such as the discovery of a new witness or a different approach to a case by a new prosecutor. See United States v. Phillips, 664 F.2d 971, 996-97 (5th Cir. 1981); Hardwick v. Doolittle, 558 F.2d 292, 301 (5th Cir.), supplemented on petition for reh'g and reh'g en banc, 561 F.2d 630 (1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978); United States v. Chagra, supra at 247-48. To show prosecutorial vindictiveness in-fact, the Defendant must establish the prosecutor's state of mind and must demonstrate that, but for vindictiveness on the part of the prosecutor, the extra prosecutorial activity would not have been undertaken. See Comment, Two Models of Prosecutorial Vindictiveness, supra at 483-84.

At the January 8, 1986 hearing on the motion to dismiss the indictments, the Defendant did not call any witnesses to support its motion, but instead relied upon cross-examination of prosecutor Ray Jahn. On direct examination, Mr. Jahn testified that the purpose of re-indicting Defendant Elizabeth Chagra was to add three overt acts to conform the indictment to the evidence adduced at the first trial and to delete the premeditation allegation based upon the reversal by the Fifth Circuit of Defendant Chagra's original conviction. In addition, Mr. Jahn testified that the Government believed that a lesser crime was charged because it was a lesser included offense, and that the Government's decision to re-indict was in no way meant to deprive Mrs. Chagra of her speedy trial, and would probably result in a shorter trial.

On cross-examination, Defendant's counsel Warren Burnett suggested that the superseding indictment would lessen the quantum of proof required of the Government several years after the initial indictment. Although Mr. Jahn admitted that the superseding indictment changed the quantum of proof, he refused to admit that it lessened it, but rather argued that the change only was a matter of degree, i.e., from first degree to second degree murder. Furthermore, Mr. Jahn stated that the purpose of returning the superseding indictment was to avoid confusing the jury on the issue of premeditation, as the Government did not intend to try to prove premeditation.

Even if this Court were to reject the Fifth Circuit's more limited in-fact theory of prosecutorial vindictiveness, see United States v. Chagra, supra, for the most liberal approach used by the courts, the Court would find no...