United States v. Wiley

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0445n.06
Filed: May 26, 2005
Nos. 04-5601 & 04-5696
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES of AMERICA,
Plaintiff-Appellee,
On Appeal from the United States District
v. Court for the Western District of Kentucky
DUMONDE WILEY (04-5601) and
SIDNEY FLETCHER (04-5696), OPINION
Defendants-Appellants.
________________________________/
Before: ROGERS and SILER, Circuit Judges; and REEVES, District Judge.*
DANNY C. REEVES, District Judge. Defendants-Appellants Dumonde Wiley and
Sidney Fletcher appeal their jury convictions and sentences for eleven counts of interference
with interstate commerce by threat of violence, a violation of the Hobbs Act, 18 U.S.C. §
1951(a), and eleven counts of use of a firearm in a crime of violence, a violation of 18 U.S.C.
§ 924(c)(1)(A). For the reasons set forth below, we AFFIRM the judgment of the district court.
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
-1-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
BACKGROUND
In February and March 2001, numerous Louisville businesses were robbed at gunpoint
by Dumonde Wiley and Sidney Fletcher. Their crime spree ended on March 22, 2001, when
Officer Larry Singleton of the Louisville Police Department observed the Defendants running
toward a getaway car parked in an alley behind a Subway restaurant that had just been robbed.
Officer Singleton called for backup and a K-9 unit was dispatched. The police dog followed the
suspects’ scent and alerted officers to a nearby shed. Fletcher, who was hiding inside, turned
himself in to police. He was arrested and taken to police headquarters. Once there, he was read
his rights, which he waived, and was questioned. During questioning, Fletcher admitted to the
robberies and provided the police with details about them.
Although Wiley escaped initially, Louisville police later discovered his whereabouts,
resulting in his arrest on June 13, 2001. Wiley was advised of his rights, executed a waiver, and
also confessed to his involvement in the robberies. Wiley, like Fletcher, also provided police
extensive details about the crimes.
After state charges had been filed, the Defendants were indicted under the Hobbs Act,
18 U.S.C. § 1951, for thirteen robberies committed in the Louisville area during February and
March 2001.1 Because firearms were used in the commission of the robberies, the Defendants
1
Police suspected the Defendants were involved in a total of 31 robberies in the Louisville area
between January and March 2001. Matt Batcheldor, Police Say Suspect is Motel Robber, Louisville Courier-
Journal, June 14, 2001.
-2-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
were also charged with separate counts of using a firearm in relation to crimes of violence in
violation of 18 U.S.C. § 924(c).
The Defendants were tried together over their objections in February 2004. Following
the close of the United States’ proof, the district court granted a motion to dismiss counts related
to two of the robberies because the requisite testimony concerning interstate commerce revealed
only that the hotels involved had “out of town” guests instead of “out of state” guests. Thus, the
required interstate nexus was not met to support a conviction for these offenses. The jury found
the Defendants guilty of all counts submitted to it for the eleven remaining robberies. Both
Wiley and Fletcher were sentenced to 3,184 months.
STANDARD OF REVIEW
This Court reviews factual findings regarding a confession for clear error, but reviews
the ultimate question of voluntariness de novo. United States v. Marks, 209 F.3d 577, 581 (6th
Cir. 2000). In addition, constitutional challenges to criminal convictions are reviewed de novo,
as questions of law. United States v. Smith, 182 F.3d 452, 455 (6th Cir. 1999). If the proper
standard was applied, “when a defendant challenges the sufficiency of the evidence to support
a conviction, we inquire whether, viewing the evidence in the light most favorable to the
government, any rational trier of fact could have found the essential elements of the offense
proven beyond a reasonable doubt.” Id. at 456. Finally, the denial of a severance motion is
reviewed “for clear abuse of discretion.” United States v. Critton, 43 F.3d 1089, 1098 (6th Cir.
1995).
-3-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
DISCUSSION
The Defendants raise four arguments on appeal: (1) Wiley’s confession was not knowing
and voluntary and it violated his right to counsel; (2) the de minimis contact with interstate
commerce test for Hobbs Act jurisdiction oversteps the federal government’s power under the
commerce clause and, regardless, the burglaries in this case did not satisfy the de minimis test;
(3) the district court erred in denying Wiley’s severance motion; and (4) the sentences violate
the Defendants’ Fifth, Sixth, and Eighth Amendment rights.
I. Wiley’s Confession
Wiley maintains that his confession was not voluntary and should have been suppressed
because: (1) he was coerced into confessing by the promise of a reduced sentence; (2) he was
never permitted to contact an attorney and was questioned after he invoked his right to counsel;
and (3) he was never asked to read the rights waiver form that he signed. A suppression hearing
was held in the district court concerning the admissibility of both Defendants’ statements. The
magistrate recommended denying the motions, a decision the district court affirmed after
conducting a de novo review.
This Court has recently reviewed the relevant consideration for claims of a coercive
confession.
The state bears the burden of proving that a defendant “voluntarily, knowingly,
and intelligently waived his right to silence and counsel.” United States v.
Bentley, 726 F.2d 1124, 1126 (6th Cir. 1984). This Court uses a “totality of the
circumstances” [test] to determine whether a petitioner’s statements were
involuntary. Brown v. Illinois, 422 U.S. 590 (1975). The Supreme Court has
-4-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
stated that, in conducting this test, a court should consider factors such as: (1)
police coercion; (2) length of interrogation; (3) location of interrogation; (4)
continuity of interrogation; (5) the suspect’s maturity; (6) the suspect’s education;
(7) the suspect’s physical condition and mental health; and (8) whether the
suspect was advised of Miranda rights. Withrow v. Williams, 507 U.S. 680, 693-
94 (1993). Coercive police activity is a necessary element for finding that a
confession was involuntary. Colorado v. Connelly, 479 U.S. 157, 167 (1986).
Abela v. Martin, 380 F.3d 915, 928 (6th Cir. 2004). Although Wiley notes the length of his
interrogation and his ninth-grade education, his claim fails because there is no evidence of police
coercion, as found by the district court.
At the suppression hearing, the magistrate heard testimony from the Defendants,
Detective Rick McCubbin, Detective Larry Duncan, Detective Mark Handy, Detective Ray
Patterson, and Detective Mark Hickman. The detectives testified that Wiley was read his
Miranda rights at 12:57 p.m. He signed a Miranda waiver at 1:00 p.m., witnessed and co-signed
by Detectives McCubbin and Handy. Later, during the interview, Detective Duncan again
reviewed with Wiley his constitutional rights and had Wiley initial the form advising him of his
rights. Detectives Duncan, Handy, Hickman and McCubbin all testified that Wiley never asked
for an attorney.
Wiley claims that he asked to call a lawyer – a request refused by Louisville police. He
also claims that he did not read the rights waiver form, instead relying upon Detective Handy’s
statement that the form was “waiving [his] rights.” After hearing the testimony, the magistrate
did not give credence to Wiley’s claim that he had requested an attorney on several occasions,
noting that “[a]ll the detectives involved in Wiley’s interrogation consistently testified that Wiley
-5-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
made no request for the presence of an attorney at any time following his arrest.” He further
found that Wiley acknowledged orally and in writing that he understood his Miranda rights.
Finally, he noted that Wiley had previous experience with the criminal justice system and was
admittedly familiar with his constitutional rights. After conducting a de novo review, the district
court found no error in the magistrate’s findings and adopted them as the court’s findings. The
findings that Wiley had: (1) been read his rights; (2) read and signed the Miranda waiver form;
and (3) failed to request an attorney, are supported by the record and Wiley has failed to show
these factual conclusions were clear error. See United States v. Cruse, 59 Fed. Appx. 72, 77 (6th
Cir. 2003) (where defendant claimed he was not read his rights and was denied access to an
attorney upon request, but police officers testified otherwise, court found that district court’s
decision to discredit the defendant’s testimony was not clearly erroneous).
Wiley also argues that he was coerced into waiving his rights by the promise of a reduced
sentence. Detectives Duncan, Handy, Hickman and McCubbin all testified that no promises had
been made to Wiley concerning leniency or a reduced sentence. Detective Hickman, however,
testified that someone else might have suggested to Wiley that he would be best served by
confessing to all of his crimes at one time, because it would spare him multiple trials and might
reduce his total sentence. Wiley claims that the detectives promised to talk to the prosecutor in
order to help him receive a lighter sentence. He also maintains that he was promised a 10-year
sentence for his cooperation.
-6-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
The magistrate found that, while the detectives told Wiley that the police would inform
the prosecutor of his cooperation, they did not promise Wiley a specific sentence. The
magistrate noted that the detectives had no way of knowing what charges would be filed and did
not hold the ultimate authority to determine Wiley’s sentence. Further, the detectives testified
that no one had promised Wiley a certain sentence, or even a range of sentences. Detective
McCubbins simply testified that he might have told Wiley that, while cooperation helps,
ultimately the plea-bargain decisions are left to the prosecutor. In addition, Detective Hickman
testified that someone may have suggested that confessing to all of the robberies at once may
result in a lower possible punishment. The district court’s factual determination that the
detectives did not promise Wiley a specific sentence is not clearly erroneous.
The magistrate further concluded, as a matter of law, that the detectives’ promise to
inform the prosecutor of Wiley’s cooperation did not render his confession involuntarily coerced.
This Court dealt with similar facts in a recent unpublished case:
the only undisputed evidence of alleged coercion consists of Sergeant
Hallenback’s statements that Defendant would be brought into federal court and
that the 5K1.1 motion was a possibility upon his cooperation with the
government. Although “a promise of leniency is relevant to determining whether
a confession was involuntary and, depending on the totality of the circumstances,
may render a confession coerced,” Clanton v. Cooper, 129 F.3d 1147, 1159 (10th
Cir. 1997), a statement about possible leniency upon cooperation is not generally
impermissible. See Williams v. Withrow, 944 F.2d 284, 289 (6th Cir. 1991)
(acknowledging that some degree of “carrot-and-stick approach to eliciting
information from an uncooperative suspect” is acceptable), rev’d on other
grounds, 507 U.S. 680 (1993).
-7-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
Cruse, 59 Fed. Appx. at 78 (internal citation omitted). Further, promises to inform a prosecutor
of cooperation do not, ipso facto, render a confession coerced. United States v. Shears, 762 F.2d
397, 401-402 (4th Cir. 1985); United States v. Robinson, 698 F.2d 448 (D.C. Cir. 1983); United
States v. Curtis, 562 F.2d 1153, 1154 (9th Cir. 1977), cert. denied, 439 U.S. 910 (1978); United
States v. Pomares, 499 F.2d 1220, 1222 (2d Cir. 1974), cert. denied, 419 U.S. 1032 (1974);
United States v. Springer, 460 F.2d 1344, 1347 (7th Cir. 1972). This is so, even when the
promise to inform the prosecutor is “accompanied by a promise to request leniency or by
speculation that cooperation will have a positive effect.” United States v. Guerrero, 847 F.2d
1363, 1366 (9th Cir. 1988); see also United States v. Westbrook, 125 F.3d 996, 1005-1006 (7th
Cir. 1997). Here, the detectives’ alleged promise to inform the prosecutor of Wiley’s
cooperation did not render the confession coerced, even if the detectives suggested that such
cooperation may have a positive impact on Wiley’s sentence.
II. Hobbs Act Jurisdiction
Fletcher maintains that this Court should follow a stricter test than the traditional de
minimis interstate commerce impact test for the establishment of federal jurisdiction under the
Hobbs Act, 18 U.S.C. § 1951. If, however, the Court is inclined to follow the de minimis impact
test, he argues that the United States failed to meet its burden for establishing that the robberies
had a de minimis impact on interstate commerce.
In United States v. Smith, supra, this Court reviewed the de minimis impact test for Hobbs
Act convictions in light of the Supreme Court’s restriction of interstate commerce jurisdiction
-8-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
in United States v. Lopez, 514 U.S. 549 (1995). The Smith Court reaffirmed that the “proper
standard for Hobbs Act convictions is the long-standing de minimis effect on interstate
commerce.” Smith, 182 F.3d at 456. Fletcher, however, cites language from United States v.
Wang, 222 F.3d 234, 240 (6th Cir. 2000), restricting Hobbs Act jurisdiction for robberies
involving private citizens. The Wang Court, however, did not overrule the Smith Court’s
decision that the de minimis impact test survived Lopez (nor could it). Rather, Wang held that
robberies of private individuals that have only a “speculative” effect on interstate commerce do
not meet the requirements for federal jurisdiction under the commerce clause. Id. at 238-39.
This Court recognized that in Smith “we decided that Lopez did not require realignment of the
Hobbs Act’s jurisdictional nexus because individual instances arising under the statute could,
through repetition, have a substantial effect on interstate commerce” and that “[t]he Hobbs Act’s
de minimis standard survives Lopez by virtue of the aggregation principle.” Id. This Court held,
however, that “[p]er Lopez, a small sum stolen from a private individual does not, through
aggregation, affect interstate commerce merely because the individual happens to be an
employee of a national company, or happens to be on his way to a store, or happens to be
carrying proceeds from a restaurant.” Id. at 239 (emphasis added). Because the robberies in this
case involved robberies of commercial businesses and not private citizens, the de minimis impact
test would be applicable under both Smith and Wang.
Fletcher argues that, even if the de minimis impact test applies, the government failed to
meet its burden of demonstrating a de minimis impact on interstate commerce. Trial testimony
-9-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
produced the following evidence of the connection between the robberies and interstate
commerce:
J.C.’s Cigarettes: items sold at the stores came from Illinois, Ohio, California,
New York, and South Carolina. The store also has out-of-state customers, a fact
gleaned from checking drivers’ licenses for the sale of tobacco and liquor.
Annie’s Pizza received its business supplies from two different suppliers in
Indiana. It also had out-of-state customers, including numerous truck drivers.
Days Inn regularly had out-of-state guests, a fact learned from checking
identification of arriving guests.
The Hampton Inn estimated, from checking guest identification, that 90-95% of
its guests were from out of state.
McDonald’s received its products from a supplier in Indiana and through an in-
state supplier that received its goods from Illinois. Based upon license plates and
discussions with customers, the store manager testified that the restaurant served
out-of-state patrons.
Diversa-Com had out-of-state customers.
Subway’s products came from “all over the country,” including Indiana and
Wisconsin.
Powertel sold Nokia phones made in Finland and received its products from
Georgia, Pennsylvania, and Washington.
In Smith, this Court found sufficient for purposes of federal jurisdiction, evidence
“proving that the stores Smith robbed did a substantial business in beer, wine, and tobacco
products and that virtually none of such products originate in Michigan.” Smith, 182 F.3d at
456. Viewing the evidence in the light most favorable to the government, a rational trier of fact
-10-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
could find beyond a reasonable doubt that Fletcher’s activities had a de minimis impact on
interstate commerce. Id.
III. Severance Motion
Wiley argues that it was a clear abuse of discretion for the district court to deny his
motion to sever his trial from Fletcher’s. Several days before the trial began the United States
discovered that prints on the vehicle involved in the final robbery came from Fletcher and
George Lee. No prints were found of Wiley. Due to the late disclosure, the district court did not
permit the United States to use this evidence against Fletcher. The court, however, allowed
Wiley to elicit testimony that none of the prints were his but, to protect Fletcher from the late
disclosure, it did not allow Wiley to have the prints identified as Fletcher’s and Lee’s.
Wiley claims that the district court’s actions prejudiced him because he was not able to
inform the jury that Lee had a criminal history, including armed robbery, and that Lee was
acquainted with Fletcher. In denying the severance motion, the district court noted that:
the Defendant has been afforded effective use of the evidence that his prints were
not on the vehicle or could not be lifted from the vehicle or his prints were not
identified from the vehicle, and . . . it is not necessary or appropriate in this matter
that he identify whose prints they were as long as they can identify and prove to
the jury that they were not his. His defense is that he was not guilty of the crime,
so that evidence can be proven that he did not have prints there.
As this Court has noted previously,
[a]s a general rule, persons jointly indicted should be tried together because there
is almost always common evidence against the joined defendants that allows for
the economy of a single trial. Severance should be granted only if there is a
serious risk that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about guilt or
-11-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
innocence. The fact that a defendant may have a better chance at acquittal if his
trial were severed does not require the judge to grant his motion: the defendant
must show “substantial,” “undue,” or “compelling” prejudice.
United States v. Lopez, 309 F.3d 966, 971 (6th Cir. 2002) (citations omitted).
In this case, the district court’s failure to allow Wiley to identify Lee and Fletcher as the
source of the fingerprints found in the car did not amount to substantial, undue or compelling
prejudice. Wiley was permitted to elicit testimony that his prints were not found. Further,
during closing arguments, Wiley’s counsel stressed that his prints had not been recovered from
any crime scene. Clearly, the most damaging evidence to Wiley was his detailed confession.
Testimony linking Lee to Fletcher and the robberies would have been of questionable value.
Wiley still would have had to deal with his detailed confession. At best, the jury would likely
have believed that Lee was somehow involved in Wiley and Fletcher’s robbery spree. The
district court’s decision to deny the severance motion did not result in substantial prejudice and
was not a clear abuse of discretion.
IV. 3,184-Month Sentences
The district court imposed 100 months for each of the eleven Hobbs Act violations, with
the sentences to run concurrently. For the violations of 18 U.S.C. § 924(c), the district court
sentenced the Defendants to the mandatory minimum of seven years, for the first count, and the
mandatory minimum of twenty five years, for the ten remaining 924(c) counts, to run
consecutively, pursuant to 18 U.S.C. § 924(c)(1)(D)(ii). Thus, the sentences totaled 3,184
months (or over 265 years). Wiley makes two arguments regarding the sentence. First, it is
-12-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
disproportionately severe. Second, he argues that the prosecutor’s ability to “charge bargain”
violates the separation of powers, the Defendants’ due process rights and his Sixth Amendment
right to trial by jury. Fletcher joins in the first argument.
A. Eighth Amendment
The Defendants argue that their lengthy sentences, which are essentially life sentences,
violate the Eighth Amendment. They note that in Solem v. Helm, 463 U.S. 277, 290-92 (1983),
the Supreme Court identified three relevant criteria in reviewing a disproportionate punishment
claim: (1) the nature of the crime and the punishment imposed; (2) the punishment for other
offenses in this jurisdiction; and (3) the punishment for similar offenses in other jurisdictions.
In Harmelin v. Michigan, 501 U.S. 957, 1004-1005 (1991), Justice Kennedy noted in a
concurrence that Solem did not announce a rigid three-part test and stated that Solem “did not
mandate such inquiries.” One of the Solem factors alone may be sufficient to determine the
constitutionality of a sentence. Id. In fact, a “reading of our cases leads to the conclusion that
intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which
a threshold comparison of the crime committed and the sentence imposed leads to an inference
of gross disproportionality.” Id. at 1005. This conclusion was later echoed by the Court in
Ewing v. California, 538 U.S. 11, 23 (2003), noting that “Justice Kennedy’s concurrence also
stated that Solem did not mandate comparative analysis within and between jurisdictions. The
proportionality principles in our cases distilled in Justice Kennedy’s concurrence guide our
application of the Eighth Amendment. . . .”
-13-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
Because several Supreme Court and Sixth Circuit cases have upheld punishments similar
to those received by the Defendants, it is not necessary to undertake an extensive Solem analysis.
In United States v. Marks, 209 F.3d 577, 581, 583 (6th Cir. 2000), this Court rejected an Eighth
Amendment challenge for two defendants who were sentenced to 1,395 months for six armed
robberies and 2,242 months for nine armed robberies. See also United States v. Collins, 61 F.3d
904 (table), 1995 WL 441622 at *3 (6th Cir. July 25, 1995) (rejecting an Eighth Amendment
attack against a 627 month sentence for three armed robberies). In upholding the sentences in
Marks and Collins, this Court cited the Supreme Court’s decision to uphold a 105-year sentence
for six armed bank robberies in Deal v. United States, 508 U.S. 129 (1993). In Deal, the Court
did not specifically consider the case on Eighth Amendment grounds; rather, it was asked to
consider whether multiple charges in the same indictment under § 921(c) qualify for the
enhanced and consecutive nature of subsequent § 921(c)(1)(C) convictions. In concluding that
multiple § 921(c) charges contained in a single indictment can trigger the provisions of §
921(c)(1)(C), however, the Court noted that:
we need not tarry over petitioner’s contention that the rule of lenity is called for
because his 105-year sentence “is so glaringly unjust that the Court cannot but
question whether Congress intended such an application of the phrase, ‘in the case
of his second or subsequent conviction.’” Br. for Pet. 24. Even under the
dissent’s reading of § 924(c)(1), some criminals whose only offenses consist of
six armed bank robberies would receive a total sentence of 105 years in prison.
We see no reason why it is “glaringly unjust” that petitioner be treated similarly
here, simply because he managed to evade detection, prosecution, and conviction
for the first five offenses and was ultimately tried for all six in a single
proceeding.
Id. at 137.
-14-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
The Eighth Amendment is “offended only by an extreme disparity between crime and
sentence.” United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991). The Defendants’
sentences of 3,184 months for committing eleven armed robberies in less than six weeks do not
constitute an “extreme disparity between crime and sentence.” As noted supra, both the
Supreme Court and this Court have upheld similar sentences for similar crimes.
B. Mandatory Minimum Sentences
Wiley also claims that mandatory minimum sentences impermissibly remove discretion
from the judiciary and vest it in the executive, allowing manipulation of sentences through the
use of “charge bargaining” and threats of federal prosecution. He also argues that their use
violates due process by failing to consider the individual circumstances of his case and also that
mandatory minimums violate his Sixth Amendment right to trial by jury by attempting to extract
a plea bargain through coercive charging tactics. At oral argument, Wiley attempted to mold his
arguments to conform to United States v. Booker, 542 U.S. ___, 125 S. Ct. 738 (2005), asserting
that the lack of judicial discretion under a mandatory minimum sentencing scheme, coupled with
his lengthy sentence, violated the Eighth Amendment.
While Wiley correctly notes that some jurists and commentators have discomfort with
mandatory minimum sentences, this Court has upheld their application. United States v. Dumas,
934 F.2d 1387 (6th Cir. 1991); cf. Mistretta v. United States, 488 U.S. 361, 364 (1989)
(Congress has power to fix sentence for federal crime and judicial discretion to determine
sentences is subject to congressional control). In addition, Booker had no impact on statutory
-15-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
minimum sentences and cannot be read for the proposition that statutory minimums are
unconstitutional. Further, Wiley’s sentence was based on individualized factors, i.e., the number
(eleven) and type (armed) of robberies he committed. In short, his sentence was severe because
he was convicted of committing a series of separate and distinct serious crimes – eleven armed
robberies.
Finally, there is absolutely no evidence that the United States sought to coerce a plea from
Wiley by threatening federal prosecution, or engaged in any other type of “vindictive
prosecution.” Bragan v. Poindexter, 249 F.3d 476, 481-82 (6th Cir. 2001). Regardless, “a
federal indictment obtained against one who has been threatened with federal prosecution for
refusing to plead guilty to state charges is not subject to dismissal on grounds of ‘vindictive
prosecution.’” United States v. Forrest, 402 F.3d 678, 691 (6th Cir. 2005) (citation omitted);
see also Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“While confronting a defendant with
the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s
assertion of his trial rights, the imposition of these difficult choices [is] an inevitable’ – and
permissible – ‘attribute of any legitimate system which tolerates and encourages the negotiation
of pleas.’” (citation omitted)). Many crimes are punishable in either state or federal court. The
decision to prosecute in federal court is vested in the sound prosecutorial discretion of the
Attorney General. See Wayte v. United States, 470 U.S. 598, 607 (1985) (citations omitted) (“In
our criminal justice system, the Government retains broad discretion as to whom to prosecute.
So long as the prosecutor has probable cause to believe that the accused committed an offense
-16-
United States v. Wiley & Fletcher
Nos. 04-5601 & 04-5696
defined by statute, the decision whether or not to prosecute, and what charge to file or bring
before a grand jury, generally rests entirely in his discretion. This broad discretion rests largely
on the recognition that the decision to prosecute is particularly ill-suited to judicial review.”).
CONCLUSION
Accordingly, we AFFIRM the judgment of the district court.
-17-