United States v. John M. Grabinski ( 1982 )

LAY, Chief Judge, dissenting, with whom STEPHENSON and McMILLIAN, Circuit Judges, join.

I concur in the court’s rulings on denial of the motions based on double jeopardy, due process, and The Speedy Trial Act. I dissent from the ruling that the denial of defendant’s motion to dismiss on the grounds of vindictive prosecution is a non-appealable order. Such an appeal, as narrowed by the facts presented here, should be allowed.

Vindictive Prosecution.

Vindictive prosecution is a relatively well-defined category of misconduct whose contours are shaped by Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). See also North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).⁴ In United States v. DeMarco, 550 F.2d 1224 (9th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 85 (1977), the Ninth Circuit affirmed the dismissal of an indictment on grounds almost identical to those asserted in this case. In DeMarco, defendant exercised his right to request to be tried in his home district under Fed.R. Crim.P. 21(b). This motion was granted and the prosecution subsequently obtained a new indictment which contained an additional charge. The facts underlying the additional charge were known by the government prior to the return of the first indictment. The court held that this conduct constituted vindictive prosecution. The facts presented here reveal the same type of claim.

Although the prosecution in this case did not elevate the risk by reindicting the defendant on a more serious charge for the same conduct charged in the initial information, cf. Blackledge, but rather by adding a charge, this case should be governed by the principles enunciated in Blackledge. The Supreme Court in Blackledge specifically eschewed reliance on the double jeopardy clause. 417 U.S. at 31, 94 S.Ct. at 2104. Subjecting a defendant to a qualitatively increased risk after he or she has exercised a procedural right is the necessary predicate to scrutiny under Blackledge whether it be done by elevating the original charge or by other means.

But adding additional charges is different than elevating the original charge. See Hardwick v. Doolittle, 558 F.2d 292, 301-02 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978). Prosecutors have broad discretion to decide who to prosecute and for what crimes. In United States v. Partyka, 561 F.2d 118 (8th Cir. 1977), cert. denied, 434 U.S. 1037, 98 S.Ct. 773, 54 L.Ed.2d 784 (1978), this court stated:

[W]e do not read Perry as taking away from prosecutors their traditional and proper discretion in deciding which of multiple possible charges against a defendant are to be prosecuted or whether they are all to be prosecuted at the same time. Cf. United States v. Crow Dog, 532 F.2d 1182, 1195-96 (8th Cir. 1976), and cases cited. See also United States v. Lovasco, supra, 431 U.S. [783] at 794, 97 S.Ct. [2044] at 2051, n.15 [52 L.Ed.2d 752.]

If it be assumed that in some cases in which a successful defense maneuver is met by the filing of additional charges challenged as vindictive, the prosecution may have a duty to negative the idea of vindictiveness, [the presumption of vindictiveness is refuted by the prosecution’s revelation of legitimate factors underlying its exercise of discretion].

Id. at 124.

The addition of charges after defendant exercises a procedural right gives rise to a presumption of vindictiveness, but there is a wider variety of legitimate reasons for the addition of a charge than for the state’s action in a pure Blackledge situation. The presumption of vindictiveness is thus more easily refuted in the type of situation at issue in this case.

Appealability.

The Supreme Court has not ruled on the appealability of a denial of a motion to dismiss based on prosecutorial vindictiveness. The Ninth Circuit Court of Appeals held that such orders are appealable. United States v. Griffin, 617 F.2d 1342 (9th Cir.), cert. denied, 449 U.S. 863, 101 S.Ct. 167, 66 L.Ed.2d 80 (1980). Two other circuits have addressed the issues, but neither confronted allegations which presented a prima facie case of vindictive prosecution. In United States v. Brizendine, 659 F.2d 215 (D.C.Cir. 1981), the District of Columbia Circuit refused to entertain an appeal from the denial of a motion to dismiss based on alleged prosecutorial vindictiveness. But the conduct alleged to establish vindictiveness occurred during plea bargaining prior to indictment. The defendants, officers of McDonnell Douglas Corporation, argued that the government sought to indict them only after McDonnell Douglas refused to accept a plea bargain. Rules governing the fluid process of bargaining differ from those applicable to latter stages of the prosecution. Compare Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (explicitly distinguishing Pearce and Blackledge) with Blackledge. In Brizendine, there were no initial stakes established which were elevated after defendants exercised some right. The court specifically states that it need not decide whether an appeal would lie in a true Blackledge situation. Brizendine, 659 F.2d at 221.

In United States v. Gregory, 656 F.2d 1132 (5th Cir. 1981), the Fifth Circuit also refused to entertain an appeal from the denial of a motion to dismiss based on alleged prosecutorial vindictiveness. But the defendants in Gregory failed to allege the elements of a claim under Blackledge. They simply asserted that the prosecutor indicted them because he was “after” them. Gregory at 1135. The Fifth Circuit also explicitly states, “There may be vindictiveness claims, of course, which by their very nature would be destroyed if an appeal was delayed.” Id. at 1136.

Given the lack of binding precedent, we must analyze the appealability of the denial of defendant’s motion to dismiss on the grounds of vindictive prosecution using the Cohen criteria. 337 U.S. at 546, 69 S.Ct. at 1225. First, the district court’s order was a final disposition of the issue. The question of vindictive prosecution has been fully and finally answered by the trial court. Second, the denial of the motion was not simply an element of the yet unmade decision on the merits. The issue of vindictive prosecution, as under Blackledge, is wholly collateral to the merits of the case. The only questions are whether defendant has demonstrated a prima facie case of vindictiveness and whether the government has adequately justified its actions. These questions are wholly unrelated to a determination of defendant’s guilt.

The difficult question is whether the right to be free from vindictive prosecution will be irreparably lost or infringed if it is not vindicated before the trial commences. In Blackledge, the Court held that the vindictive prosecution claim implicated “the very power of the State to bring the defendant to court to answer the charge brought against him.” 417 U.S. at 30, 94 S.Ct. at 2103.⁵ The Supreme Court explicitly stated that the defendant’s right to be free of vindictive prosecution is a “right not to be haled into court at all upon the felony charge.” Id. “The very initiation of the proceedings against him in the Superior Court thus operates to deny him due process of law.” Id. at 30-31, 94 S.Ct. at 2103-04; see Abney, 431 U.S. at 659-60, 97 S.Ct. at 2040-41 (citing Blackledge).

The Blackledge decision was thus rooted in a desire to prevent fear of vindictiveness from chilling defendants’ exercise of their rights. Even if a conviction is subsequently reversed, the anxiety produced by the increased risk involved in standing trial on the new charges and the added expense and difficulty of defending against the charges would deter defendants from utilizing procedural rights. It is the state’s power to harass a defendant — “subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty,” Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957) (Justice Black describing purpose of double jeopardy clause) — which underlies the prohibition against twice placing an individual in jeopardy. The same concerns govern a claim of vindictive prosecution under the facts of Blaekledge. Although the remedy for violation of many rights is dismissal and thus granting the remedy before trial would eliminate the burdens of standing trial, the elimination of the costs and anxieties of trial would be incidental to the vindication of these rights. See MacDonald, 435 U.S. at 860 n.7, 98 S.Ct. at 1552 n.7. But in the case of vindictive prosecution, the state must be prevented from imposing these burdens in order to vindicate the policy underlying the vindictive prosecution decisions. I therefore conclude that the denial of a motion based on a claim of vindictive prosecution under Blackledge is a collateral order under Cohen and thus is appealable before a final decision on the merits of the case.⁶

4 . In Blackledge, the defendant invoked his statutory right to a trial de novo in superior court after he was charged with and convicted of a misdemeanor. The prosecution then indicted him on a felony charge based on the same underlying conduct. The court held that these facts created a presumption of vindictiveness even in the absence of direct evidence of retaliatory motivation. 417 U.S. at 27-28, 94 S.Ct. at 2102-03. Because the prosecution failed to rebut the presumption with evidence that intervening events justified its action, the presumption stood and the indictment was dismissed. Id. at 29 n.7, 94 S.Ct. at 2103 n.7.

5 . In Blackledge, the defendant pled guilty to the second charge. Thus the Court had to decide whether vindictive prosecution implicated the state’s power to bring the defendant into court or whether it was a defect which could be waived, like other violations of constitutional rights, by the entry of a guilty plea. See Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

6 . The procedure by which we request the district court to certify whether a motion to dismiss based on the double jeopardy clause is frivolous or not should also apply to interlocutory appeals based on allegations of vindictive prosecution. I emphasize that only colorable claims of vindictive prosecution within the confines of the principles articulated in Blackledge—claims revealing the assertion of a procedural right and a prosecutor’s consequent elevation of defendant’s risk—give rise to an appeal-able order.

In the event the district court indicates that a motion to dismiss is frivolous, this court should entertain the request for stay only through application for a writ of mandamus.

I also feel that motions to dismiss on grounds of either double jeopardy or vindictiveness in prosecution should be made by a defendant at the earliest possible time after indictment. Timeliness of the motion to dismiss may be a substantial factor in this court’s decision to stay the proceedings in the district court pending disposition of the appeal. See United States v. Wilson, 639 F.2d 500, 502 n.1 (9th Cir. 1981) (noting that filing of frivolous motions alleging vindictive prosecution has caused delay in the Ninth Circuit).