DocketNumber: 970746181; A101010
Citation Numbers: 176 Or. App. 396, 31 P.3d 1108
Judges: Brewer, Landau, Linder
Filed Date: 9/5/2001
Status: Precedential
Modified Date: 7/24/2022
Defendant appeals her conviction of one count of prostitution, ORS 167.007, challenging the trial court’s denial of her motion to dismiss on vindictive and selective prosecution grounds. The sole issue presented is whether a prosecutor’s decision not to bring charges against persons who testify truthfully against other offenders, while charging those who invoke their Fifth Amendment privilege and decline to so cooperate, amounts to vindictive or selective prosecution as to the persons who are charged. We conclude that it does not and, consequently, we affirm.
The relevant facts are not disputed. During a police investigation of certain escort services that were suspected fronts for prostitution, defendant was videotaped while engaging in an alleged act of prostitution at a Portland motel. Sometime later, two Portland police officers served her with a subpoena to appear and testify before a grand jury. The officers told defendant that, although neither she nor the other women who worked for the escort service were the targets of the investigation or the grand jury, she would be expected to testify truthfully about her dealings with the operators of the escort service. To dissuade defendant from testifying falsely, the police warned her that they had a videotape of her engaging in an act of prostitution. The police further told defendant that they would appreciate her cooperation but that they were not promising that she would not be prosecuted if she cooperated and testified before the grand jury. That charging decision, the police advised, would be made by the prosecutor.
Defendant appeared before the grand jury pursuant to the subpoena. When she was asked if she knew one of the operators of the escort service, she refused to answer, citing her Fifth Amendment right not to incriminate herself. She was not asked any additional questions. Later, defendant was indicted for prostitution. Of the employees who worked for the prostitution business and who were subpoenaed to the grand jury, defendant was the only one who refused to testify. She also was the only employee who was indicted for prostitution.
“Those who cooperated, testified candidly, about their knowledge of [the operators of the prostitution ring], they were not charged — in effect, a tradeoff in order to prosecute the perpetrators of a class C felony in an organized criminal operation and not prosecuting those who committed a lesser offense, a class A misdemeanor.”
The prosecutor viewed the employees’ testimony as “critical” to a successful prosecution of the operators of the prostitution ring because it was “essential in proving the knowing elements” of the charge against those individuals. He thus described witnesses as the “bedrock” of the state’s case-in-chief against the operators. The prosecutor did not tell the employees in advance of their grand jury appearance that they would not be prosecuted if they testified truthfully because he feared that the defense would use any such promise to impeach them at trial.
Before trial on defendant’s prostitution charge, defendant moved to dismiss the indictment, claiming vindictive prosecution. In argument on the motion, defendant expanded her grounds to include a selective prosecution claim. After an evidentiary hearing, the trial court denied defendant’s motion, concluding that she had not shown that the state’s decision to prosecute her was “motivated by a discriminatory purpose.” Following a stipulated facts trial, defendant was convicted of prostitution.
On appeal, the parties renew the arguments they made below. They do not dispute the facts relating to the
Defendant’s vindictive and selective prosecution claims, as invoked in this case, are predicated on federal constitutional principles.
“Selective prosecution” has a different constitutional source but reflects a similar value. Drawing from Equal Protection Clause standards, selective prosecution arises where a defendant demonstrates that others “similarly situated” were treated more favorably and “that the decision whether to prosecute [was] based on ‘an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” United States v. Armstrong, 517 US 456, 464, 116 S Ct 1480, 134 L
Defendant’s claim that the prosecutor charged her out of hostility to her assertion of her Fifth Amendment privilege before the grand jury is best understood against the backdrop of the Supreme Court cases on which she relies. In particular, it is helpful to contrast North Carolina v. Pearce, 395 US 711, 89 S Ct 2072, 23 L Ed 2d 656 (1969), and Blackledge v. Perry, 417 US 21, 94 S Ct 2098, 40 L Ed 2d 628 (1974), in which the Court determined that the circumstances warranted a presumption of prosecutorial vindictiveness, with Bordenkircher and Goodwin, in which the Court refused to presume vindictiveness from the circumstances and, moreover, found no actual vindictiveness in fact.
Bordenkircher and Goodwin arose in a pretrial setting, a fact that proved central to the Court’s analysis and that led it to an opposite conclusion. In Bordenkircher, the prosecutor carried out an explicit threat to file more serious charges against the defendant if the defendant refused to plead guilty to a less serious offense and insisted, instead, on standing trial. Despite the fact that the prosecutor’s charge was directly based on the defendant’s assertion of his constitutional right to a jury trial, the Court declined to presume that the prosecutor’s motive was vindictive. Equally important, the Court was unwilling even to characterize as “vindictive” a prosecutor’s desire to induce a defendant to forgo his right to trial by pleading guilty. The Court recognized that, by its toleration and encouragement of plea bargaining, it had “accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.” Bordenkircher, 434 US at 364. Thus:
*403 “To hold that the prosecutor’s desire to induce a guilty plea is an ‘unjustifiable standard,’ which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself.”
Id. at 364-65. The Court emphasized that the concept of vindictiveness requires a retaliatory motive, one in which the “objective is to penalize a person’s reliance on his legal rights.” Id. at 363. Some selectivity in the charging decision is inherent in the broad discretion afforded prosecutors; the constitution is not offended by selectivity per se but only by a decision “deliberately based upon an unjustifiable standard.” Id. at 364.
The Court reached the same result on similar facts in Goodwin. There, the defendant was charged with several misdemeanor and petty offenses and was arraigned before a federal magistrate. The case was assigned to a prosecutor who lacked authority to pursue or try felony cases. Defendant initiated pled negotiations but then rejected the government’s offer and demanded a jury trial in district court. The case was transferred to a new prosecutor authorized to appear in that forum and who, after reviewing the facts, obtained an indictment charging defendant with a felony offense in addition to several misdemeanor charges.
In rejecting the defendant’s claim of prosecutorial vindictiveness, the Court first noted that, unlike in Bordenkircher, the defendant in Goodwin could not claim “actual” vindictiveness, because nothing in the record suggested that the additional felony charge was brought to influence the defendant’s decision whether to plead or go to trial. Goodwin, 457 US at 380-81. Nor, as in Bordenkircher, was the Court willing to presume a vindictive motive given the pretrial posture of the case. As the Court observed, before trial, a defendant is likely to invoke procedural rights that “inevitably impose some ‘burden’ on the prosecutor,” such as motions to suppress evidence, motions to dismiss the charge, and motions for a jury trial, among others. Id. at 381. Given the pretrial procedural maneuvering inherent in the advocacy process, the Court considered it “unrealistic to assume that a prosecutor’s probable response to such motions is to
Bordenkircher and Goodwin are important to our analysis of this case because, in addition to refusing to extend any presumption of vindictiveness to pretrial charging decisions, the Court in those cases clarified what qualifies as “vindictive” for constitutional purposes. “But for” causation is not the test; the fact that a defendant’s assertion of a constitutional right is a precipitating event in a particular charging decision does not make the charge vindictive. See generally United States v. Gallegos-Curiel, 681 F2d 1164, 1168-69 (9th Cir 1982) (concluding, based on Supreme Court cases, that the link of vindictiveness cannot be inferred simply because the prosecutor’s actions followed the exercise of a right, or because they would not have been taken but for exercise of a defense right; hostility or punitive animus is required); State v. Nelson, 166 Or App 189, 203-04, 999 P2d 1161 (2000) (discussing Supreme Court cases and concluding that, in a pretrial setting, vindictive prosecution does not arise when a prosecutor brings charges “in response” to a defendant’s exercise of a constitutional right; the prosecutor must act with a retaliatory or punitive motive). Before trial, concerns that legitimately may factor into that normal assessment — such as the burden of going to trial — inherently arise as a result of a defendant’s exercise or waiver of constitutional rights or interests. As long as a prosecutor’s charging decision is based on the normal assessment of the public interest in the extent of prosecution, and not on hostility to the exercise of the right itself, the fact that the defendant’s exercise of a constitutional right precipitates the prosecutor’s legitimate interests does not render the prosecution vindictive, illegitimate, or otherwise unconstitutionally selective.
With that understanding of the controlling precedents, we turn to the facts of this case. The evidence is undisputed that the prosecutor intended to bring charges against all employees against whom the state had probable cause to
In that regard, defendant does not argue that a suspect’s cooperation or noncooperation is itself an illegitimate consideration in the charging decision. Nor would such an argument detain us. As one court has put it, the cooperation and willingness of some to testify against others “ ‘is the time-honored manner of such things; use of cooperative witnesses anxious to ease their own paths is an accepted and necessary practice.’ ” United States v. Bradley, 27 MJ 872, 874 (AFMCR 1989), aff'd in part, rev’d in part 30 MJ 308 (CMA 1990) (attributing the quotation to counsel). Consistently with that recognition, national standards for the exercise of prosecutorial charging discretion explicitly identify the “cooperation of the accused in the apprehension or conviction of others” as an appropriate consideration in assessing the public interest in whether to pursue a charge in an individual case. ABA Standards for Criminal Justice 3-3.9(b)(vi) (2d ed 1980 and 1986 Supp).
Defendant nevertheless asserts that the prosecutor’s charging decision amounts to vindictive and selective prosecution because the form of cooperation required was defendant’s waiver of her Fifth Amendment right against self-incrimination. Rather than distinguish this case from Bordenkircher and Goodwin, however, that fact brings it
Defendant’s final point is that this case is distinguishable from Bordenkircher and Goodwin because the
To be sure, the Court in Bordenkircher pointed out the “mutuality of advantage” involved in the plea bargaining. 434 US at 363. But the Court did so in response to the defendant’s argument that the prosecutor’s motives were necessarily vindictive because the plea bargain was designed to induce the defendant to waive his right to trial. The Court recognized that some inducement was inherent in the process of plea bargaining but it was not such as to eliminate a defendant’s ability to make a knowing and voluntary choice as to how best to serve his own interests. Thus, just as a plea cannot be deemed “involuntary” because of the pressure that the bargained-for-exchange places on a defendant to forgo a trial, likewise a prosecutor’s offer cannot be viewed as illegitimate or vindictive because it is designed to exert such pressure. See id. at 363-64.
Our view of the point of that discussion in Bordenkircher is reinforced by the Court’s holding in Goodwin. There, when plea negotiations took place, the government neither contemplated bringing an additional felony charge nor threatened to do so. Negotiations were over by the time
In conclusion, we hold that a prosecutor, in exercising pretrial charging discretion, legitimately may consider a defendant’s noncooperation in investigating and prosecuting other crimes and other offenders, even when that noncooperation is in the form of assertion of a constitutional right. Such a decision, without more, does not reflect hostility or animus to the exercise of the right, nor is it an impermissible ground of selection. The trial court therefore correctly rejected defendant’s claims of vindictive and selective prosecution, and properly denied defendant’s motion to dismiss.
Affirmed.
Defendant does not rely on any state source of law for her claims.
The state argues that a vindictive prosecution claim arises only in connection with prosecutorial charging decisions made after an initial charge, such as bringing new or added charges. According to the state, a defendant is limited to a claim of selective prosecution when challenging an initial charging decision. Federal courts appear divided on that proposition. Compare Wilson, 639 F2d at 501-02 (doctrine of vindictive prosecution applies only where there has been an increase in the severity of charges; selective prosecution applies to initial prosecution) with United States v. Napue, 834 F2d 1311, 1330 (7th Cir 1987) (in appropriate circumstances, mere filing of indictment can form the basis for a vindictive prosecution claim). Nothing in the United States Supreme Court’s decisions suggests that vindictive prosecution claims are confined to added or altered charging decisions. To the contrary, two of the Court’s vindictive prosecution cases quote and draw from the Oyler standard for selective prosecution, thus blending the doctrines. See Bordenkircher, 434 US at 364; accord Goodwin, 457 US at 372 and 380 n 11. Lower courts appear to have implied the distinction from the factual contexts in which the Supreme Court precedents have arisen, rather than from the logical boundaries of the constitutional principles themselves. In all events, at least in the circumstances presented here, we conclude that there is no substantive difference in the analysis of the two claims. We therefore consider them in tandem.
As the commentary to the standards explains, a prosecutor “ordinarily should prosecute if, after full investigation, it is found that a crime has been committed, the perpetrator can be identified, and there is sufficient admissible evidence available to support a verdict.” Id. at 3.55. But that is not to say that all charges supported by probable cause should be pursued. “The breadth of criminal legislation necessarily means that much conduct that falls within its literal terms should not always lead to criminal prosecution.” Id. at 3.56. A prosecutor “is not neglecting
Several federal courts have considered vindictive and selective prosecution claims in which the defendants asserted that their cooperation or noncooperation with law enforcement was not a legitimate consideration in the exercise of charging discretion. Those courts appear uniformly to have rejected that argument. See, e.g., United States v. Sanders, 211 F3d 711, 720 (2nd Cir 2000) (the prosecution of a defendant who refused to cooperate with the government by revealing confidential news source does not reflect animus or a retaliatory motive); United States v. Ross, 719 F2d 615, 620 (2d Cir 1983) (“Where there is probable cause for believing a defendant has committed a crime, his prosecution is not constitutionally barred because the prosecutor’s selection of his, out of many other possible crimes to pursue, was precipitated by defendant’s failure to cooperate with law enforcement officials.”); United States v. Blackley, 986 F Supp 616, 620 (DDC 1997) (it is not only permissible but routine to bring more lenient charges or agree to more lenient plea agreements in exchange for cooperation with an ongoing investigation); United States v. Wingo, 723 F Supp 798, 802 (ND Ga 1989) (government’s motive to reward cooperation does not translate into vindictiveness for noncooperation).
For example, a defendant’s cooperation could take the form of consent to a search, a confession or admission of culpability in a nontestimonial setting, a willingness to talk to police without representation by counsel at a stage at which the right to counsel had attached, and similar waivers of constitutional rights.
Defendant has not cited any authority directly on point that supports her, nor have we identified any. To the contrary, federal cases involving noncooperation in the form of asserting a Fifth Amendment privilege appear uniformly to have rejected her position. See, e.g.,Jarrett v. United States, 822 F2d 1438, 1443-44 (7th Cir 1987) (defendant was not impermissibly singled out for prosecution based on accomplice’s willingness to testify before grand jury and defendant unwillingness to do so); United States v. Boss, 652 F2d 36, 38 (10th Cir 1981) (defendant, who was prosecuted after exercising Fifth Amendment right and refusing to cooperate with law enforcement, was not thereby vindictively or selectively prosecuted).
Defendant’s argument overlooks that there is a mutuality of disadvantage inherent in the situation. By not expressly negotiating for the employees’ testimony in exchange for a formal grant of immunity, the prosecutor risked the possibility that none or an insufficient number of the employees would testify against the operators of the prostitution ring, which in the prosecutor’s view meant that the state’s evidence against them would be inadequate. Alternatively, had the prosecutor made an explicit “deal” with the employees, he risked having the testimony of the employees upon whom his case depended impeached for bias. Those realities underscore the rationale of the Court’s holdings in Bordenkircher and Goodwin — before trial, both the prosecution and the defense are involved in a necessarily self-interested dance of procedural maneuvering designed to further their respective legitimate interests. The constitution simply is not offended when considerations of those kinds prompt a prosecutor’s charging decisions.