Sometimes, the government crosses the line and files charges for punitive purposes. This is a clear violation of a defendant’s Fifth Amendment right to due process, which is known as vindictive prosecution, and an indictment brought against a defendant for such an improper and punitive purpose may be dismissed. More specifically, the United States Supreme Court has held that “[a] prosecutor violates due process when he seeks additional charges solely to punish a defendant for exercising a constitutional . . . right,” United States v. Gamez-Orduno, 235 F.3d 453, 462 (9th Cir. 2000), citing Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978), which warrants dismissal of the criminal case, if the defendant can prove the punitive purpose. See e.g., Blackledge v. Perry, 417 U.S. 21, 28-29 (1974) (prosecutor impermissibly obtained a felony indictment resulting in a five to seven-year sentence after the defendant had received a six-month sentence for an assault and had exercised an absolute right of appeal and to trial de novo allowed under North Carolina law).
Moreover, there are two ways to establish prosecutorial vindictiveness in order to obtain a dismissal of the criminal case. First, the defendant can establish vindictiveness, “by producing direct evidence of the prosecutor’s punitive motivation.” United States v. Jenkins, 504 F.3d 694, 699 (9th Cir. 2007) (emphasis added).
Second, instead of direct evidence, the defendant can establish prosecutorial vindictiveness by showing that the circumstances establish a “reasonable likelihood of vindictiveness,” thus giving rise to a presumption that the government must in turn rebut. United States v. Goodwin, 457 U.S. 368, 373 (1982). In this regard, a defendant “is entitled to a presumption of vindictiveness if” the evidence shows that the criminal charges “‘were filed because [the defendant] exercised a . . . constitutional right in circumstances that give rise to an appearance of vindictiveness.'” Jenkins, 504 F.3d at 699, quoting United States v. Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir. 1982). Once the defendant establishes the mere appearance of vindictiveness, “the prosecution bears a heavy burden of proving” that it “was not motivated by a vindictive motive.” United States v. Ruesga-Martinez, 534 F.2d 1367, 1368-1369 (9th Cir. 1976) (emphasis added).
As the Ninth Circuit explained in Gallegos-Curiel,
the defendant must make an initial showing that charges of increased severity were filed because the accused exercised a . . . constitutional right in circumstances that give rise to an appearance of vindictiveness. If there is a sufficient prima facie showing of vindictiveness, the burden shifts to the prosecution to show that any increase in the severity of the charges did not stem from a vindictive motive, or was justified by independent reasons or intervening circumstances that dispel the appearance of vindictiveness.
Gallegos-Curiel, 681 F.2d at 1168 (citations omitted).
Furthermore, “[t]he ‘appearance of vindictiveness’ rule is a prophylactic rule designed both to protect the present defendant from vindictiveness and to prevent a chilling of the exercise of rights by other defendants in the future.” United States v. Motley, 655 F.2d 186, 188 (9th Cir. 1981). In this regard, to establish a presumption of vindictiveness, the defendant need not show “that the prosecutor acted in bad faith” or that he “maliciously sought” the criminal charges. United States v. Groves, 571 F.2d 450, 453 (9th Cir. 1978). Rather, the defendant must demonstrate a “reasonable likelihood” that the government would not have brought the criminal charges had the defendant not elected exercised his or her constitutional rights. Gallegos-Curiel, 681 F.2d at 1169.
“[T]he appearance of vindictiveness,” therefore, “results only where, as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or a punitive animus towards the defendant because he [or her] has exercised his [or her] specific legal rights.” Gallegos-Curiel, 681 F.2d at 1169, citing Goodwin, 457 U.S. at 373, 384. For this reason, “whether the facts give rise to the appearance of vindictiveness is dependent upon the totality of the circumstances,” United States v. Griffin, 617 F.2d 1342, 1347 (9th Cir. 1980), and, as such, “[c]onsideration of the vindictive prosecution claim necessitates . . . an ad hoc determination of whether the defendant has reason to perceive a vindictive motive.” Id. at 1348.
United States v. Adams, 870 F.2d 1140 (6th Cir. 1989) is an instructive case. There, the court found that there might have been a likelihood of vindictiveness based on a prosecutorial intent to punish the defendant. Id. at 1145-46. Specifically, the court found that the defendant’s evidence presented a suspicious reasoning behind the prosecutor’s action. Id. The court noted that it could not recollect an instance in which a taxpayer who voluntarily amended her return and paid the deficiency had been prosecuted. Id. at 1145. Nor could the court remember a time when a person had been prosecuted for perjury for testimony given in a civil proceeding. Id. at 1145-46. The court noted, in addition, that the defendant presented affidavits that stated the prosecution against the defendant was for “revenge” for the defendant’s filing of a sex discrimination suit against the U.S. Equal Employment Opportunity Commission, and that, under such circumstances as presented in the case, prosecution would not have normally been instituted. Id. at 1141, 1146. These affidavits, the court held, raised the question of “why [the] particular prosecution was undertaken.” Id.
Jenkins, 504 F.3d 694 is also an instructive case. There, the defendant, Jenkins, was charged with marijuana smuggling and exercised her constitutional right to testify in her own defense at marijuana smuggling trial. Id. at 701. After invoking her constitutional right to testify, the prosecutor brought a separate indictment against Jenkins alleging that she smuggled aliens. The district court dismissed the indictment, reason the prosecutor’s conduct created the “appearance of vindictive prosecution” when the prosecutor brought alien smuggling charges against only after Jenkins exercised her constitutional right to testify in her own defense at her separate marijuana smuggling trial. Id. at 701. On appeal, the Ninth Circuit “conclude that the indictment should be dismissed,” reasoning “the government could have prosecuted Jenkins for alien smuggling well before she presented her theory of defense at the marijuana smuggling trial, the timing of the charges created the appearance of vindictiveness.” Id.
At Kashfian & Kashfian, LLP, we have experience filing motions for vindictive prosecution in white collar criminal cases, and as your counselor, we will fight vigorously on your behalf. Contact our offices to learn more about the services that we provide.
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