United States v. Phillip Selfa ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10094
Plaintiff-Appellee, D.C. No.
2:12-cr-00324-JAM-1
v.
PHILLIP DALE SELFA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted February 16, 2018**
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,*** District Judge.
In May 2011, a joint state-federal taskforce apprehended appellant Philip
Selfa for a string of bank robberies. In state court, Selfa successfully challenged a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
three-strikes designation, reducing his sentencing exposure from a minimum
sentence of twenty-five years to a maximum sentence of ten years. Weeks later, the
United States brought federal charges and the state charges were dismissed. Selfa
pleaded guilty and was sentenced to 188 months in prison. He filed this appeal
challenging the validity of his convictions on the ground of vindictive prosecution,
alleging that the federal charges against him were brought in retaliation for the
successful challenge of his three-strikes designation in state court.
The district court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291. We review the district court’s factual findings
for clear error and its application of the law de novo. United States v. Kent, 649
F.3d 906, 912 (9th Cir. 2011).1
Due process prohibits prosecutors from punishing a person solely for
exercising a statutory or constitutional right. Bordenkircher v. Hayes, 434 U.S.
357, 363 (1978). In the absence of direct evidence, a court may presume
vindictiveness if the circumstances show a “reasonable likelihood” it existed.
1
The government asserts that Selfa waived this issue by entering a guilty plea
without conditioning it on his right to raise vindictive prosecution on appeal.
Before pleading guilty, Selfa unsuccessfully moved to dismiss his charges on
vindictiveness grounds and sought interlocutory appeal of the district court’s
denial. He again raised the issue in this appeal the day after his sentencing hearing.
Given those facts and our previous explanation that “the merits of a vindictive
prosecution claim are reviewable even after entry of an unconditional plea,” United
States v. Brown, 875 F.3d 1235, 1238 (9th Cir. 2017), we find no reason to refuse
to consider Selfa’s argument on waiver grounds.
2
United States v. Goodwin, 457 U.S. 368, 373 (1982).
Circumstances establishing a presumption of vindictiveness generally
involve multiple opportunities for punishment before the same judge, prosecutor,
or sovereign. See id. at 383 (citing examples of a judge or prosecutor’s “personal
stake” in avoiding retrial, institutional bias against “retrial of a decided question,”
and efforts to deter defendants from exercising a right). In cases involving separate
sovereigns,2 we have expressed doubt whether one sovereign’s prosecution can be
vindictive when it is alleged to have punished a defendant for rights he asserted
against a different sovereign. United States v. Robison, 644 F.2d 1270, 1273 (9th
Cir. 1981). We have not ruled out vindictive prosecution claims in separate-
sovereign cases, but we have held “that the involvement of separate sovereigns
tends to negate a vindictive prosecution claim.” Id.We have also held that harsher federal penalties constitute a legitimate
reason for bringing federal charges. United States v. Nance, 962 F.2d 860, 865 (9th
Cir. 1992). “Unless a defendant can prove that the decision to initiate federal
prosecution is arbitrary, capricious, or based on race, religion, gender, or similar
suspect characteristics, there are no grounds for finding a due process violation,
even when the motive for federal prosecution is that harsher sentences are
2
Apart from the vindictiveness context, successive prosecutions for the same
conduct by separate sovereigns is an otherwise constitutional exercise of sovereign
power. Heath v. Alabama, 474 U.S. 82, 87 (1985).
3
possible.” Id. (citation omitted).
Here, the district court did not err in denying Selfa’s motion to dismiss. Selfa
cites no direct evidence of vindictiveness, and the circumstances do not suggest a
reasonable likelihood it existed. There was no retrial to impact federal prosecutors’
personal stake or trigger institutional bias against repeated proceedings.
Additionally, it makes little sense that federal prosecutors would try to deter
Selfa’s challenge to his recidivist designation. Indeed, a future defendant in his
situation would have no reason to be deterred because the challenge actually
resulted in a less harsh sentencing exposure.
Selfa argues the timing of the federal charges indicates the United States
only charged him because he prevailed in his state-court challenge. Before the
district court, the United States asserted that the state proceedings did not impact
the decision to bring federal charges, and there is no evidence that the federal
charges were motivated by anything other than vindicating federal interests. In any
event, case law suggests there would be no basis for a vindictive prosecution claim
even were Selfa’s reduced sentencing exposure a factor. See id.AFFIRMED.
4