After initially expressing an interest in plea bargaining on
misdemeanor charges, respondent decided not to plead guilty and
requested a trial by jury. While the misdemeanor charges were still
pending, he was indicted and convicted in Federal District Court on
a felony charge arising out of the same incident as the misdemeanor
charges. Respondent moved to set aside the verdict on the ground of
prosecutorial vindictiveness, contending that the felony indictment
gave rise to an impermissible appearance of retaliation. The
District Court denied the motion. The Court of Appeals reversed,
holding that, although the prosecutor did not act with actual
vindictiveness in seeking a felony indictment, the Due Process
Clause prohibits the Government from bringing more serious charges
against the defendant after he has invoked his right to a jury
trial, unless the prosecutor comes forward with objective evidence
that the increased charges could not have been brought before the
defendant exercised his right. Believing that the circumstances
surrounding the felony indictment gave rise to a genuine risk of
retaliation, the court adopted a legal presumption of prosecutorial
vindictiveness.
Held: A presumption of prosecutorial vindictiveness was
not warranted in this case, and absent such a presumption, no due
process violation was established. Pp.
457 U. S.
372-384.
(a) In cases in which action detrimental to a defendant has been
taken after the exercise of a legal right, the presumption of an
improper vindictive motive has been applied only where a reasonable
likelihood of vindictiveness existed.
North Carolina v.
Pearce, 395 U. S. 711;
Blackledge v. Perry, 417 U. S. 21.
Cf. Bordenkircher v. Hayes, 434 U.
S. 357. Pp.
457 U. S.
372-380.
(b) A change in the prosecutor's charging decision made after an
initial trial is completed is much more likely to be improperly
motivated than is a pretrial decision. It is unrealistic to assume
that a prosecutor's probable response to such pretrial motions as
to be tried by a jury is to seek to penalize and to deter. Here,
the timing of the prosecutor's action suggests that a presumption
of vindictiveness was not warranted. A prosecutor should remain
free before trial to exercise his discretion to determine the
extent of the societal interest in the prosecution. The initial
Page 457 U. S. 369
charges filed by a prosecutor may not reflect the extent to
which an individual is legitimately subject to prosecution.
Bordenkircher, supra. Pp.
457 U. S.
380-382.
(c) The nature of the right asserted by respondent confirms that
a presumption of vindictiveness was not warranted in this case. The
mere fact that a defendant refuses to plead guilty and forces the
government to prove its case is insufficient to warrant a
presumption that subsequent changes in the charging decision are
unwarranted.
Bordenkircher, supra. Pp.
457 U. S.
382-383.
(d) The fact that respondent, as opposed to having a bench
trial, requested a jury trial does not compel a special presumption
of prosecutorial vindictiveness whenever additional charges are
thereafter brought. While there may have been an opportunity for
vindictiveness here, a mere opportunity for vindictiveness is
insufficient to justify the imposition of a prophylactic rule. The
possibility that a prosecutor would respond to a defendant's
pretrial demand for a jury trial by bringing charges not in the
public interest that could be explained only as a penalty imposed
on the defendant is so unlikely that a presumption of
vindictiveness is certainly not warranted. Pp.
457 U. S.
383-384.
637 F.2d 250, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ.,
joined. BLACKMUN, J., filed an opinion concurring in the judgment,
post at
457 U. S. 385.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post at
457 U. S.
386.
JUSTICE STEVENS delivered the opinion of the Court.
This case involves presumptions. The question presented is
whether a presumption that has been used to evaluate a judicial or
prosecutorial response to a criminal defendant's exercise of a
right to be retried after he has been convicted
Page 457 U. S. 370
should also be applied to evaluate a prosecutor's pretrial
response to a defendant's demand for a jury trial.
After the respondent requested a trial by jury on pending
misdemeanor charges, he was indicted and convicted on a felony
charge. Believing that the sequence of events gave rise to an
impermissible appearance of prosecutorial retaliation against the
defendant's exercise of his right to be tried by jury, the United
States Court of Appeals for the Fourth Circuit reversed the felony
conviction. 637 F.2d 250. Because this case presents an important
question concerning the scope of our holdings in
North Carolina
v. Pearce, 395 U. S. 711, and
Blackledge v. Perry, 417 U. S. 21, we
granted the Government's petition for certiorari. 454 U.S.
1079.
I
Respondent Goodwin was stopped for speeding by a United States
Park Policeman on the Baltimore-Washington Parkway. Goodwin emerged
from his car to talk to the policeman. After a brief discussion,
the officer noticed a clear plastic bag underneath the armrest next
to the driver's seat of Goodwin's car. The officer asked Goodwin to
return to his car and to raise the armrest. Respondent did so, but
as he raised the armrest, he placed the car into gear and
accelerated rapidly. The car struck the officer, knocking him first
onto the back of the car and then onto the highway. The policeman
returned to his car, but Goodwin eluded him in a high-speed
chase.
The following day, the officer filed a complaint in the District
Court charging respondent with several misdemeanor and petty
offenses, including assault. Goodwin was arrested and arraigned
before a United States Magistrate. The Magistrate set a date for
trial, but respondent fled the jurisdiction. Three years later,
Goodwin was found in custody in Virginia, and was returned to
Maryland.
Upon his return, respondent's case was assigned to an attorney
from the Department of Justice, who was detailed
Page 457 U. S. 371
temporarily to try petty crime and misdemeanor cases before the
Magistrate. The attorney did not have authority to try felony cases
or to seek indictments from the grand jury. Respondent initiated
plea negotiations with the prosecutor, but later advised the
Government that he did not wish to plead guilty and desired a trial
by jury in the District Court. [
Footnote 1]
The case was transferred to the District Court and
responsibility for the prosecution was assumed by an Assistant
United States Attorney. Approximately six weeks later, after
reviewing the case and discussing it with several parties, the
prosecutor obtained a four-count indictment charging respondent
with one felony count of forcibly assaulting a federal officer and
three related counts arising from the same incident. [
Footnote 2] A jury convicted respondent on
the felony count and on one misdemeanor count.
Respondent moved to set aside the verdict on the ground of
prosecutorial vindictiveness, contending that the indictment on the
felony charge gave rise to an impermissible appearance of
retaliation. The District Court denied the motion, finding that
"the prosecutor in this case has adequately dispelled any
appearance of retaliatory intent." [
Footnote 3]
Page 457 U. S. 372
Although the Court of Appeals readily concluded that "the
prosecutor did not act with actual vindictiveness in seeking a
felony indictment," 637 F.2d at 252, it nevertheless reversed.
Relying on our decisions in
North Carolina v. Pearce,
supra, and
Blackledge v. Perry, supra, the court held
that the Due Process Clause of the Fifth Amendment prohibits the
Government from bringing more serious charges against a defendant
after he has invoked his right to a jury trial, unless the
prosecutor comes forward with objective evidence to show that the
increased charges could not have been brought before the defendant
exercised his rights. Because the court believed that the
circumstances surrounding the felony indictment gave rise to a
genuine risk of retaliation, it adopted a legal presumption
designed to spare courts the "unseemly task" of probing the actual
motives of the prosecutor. 637 F.2d at 255.
II
To punish a person because he has done what the law plainly
allows him to do is a due process violation "of the most basic
sort."
Bordenkircher v. Hayes, 434 U.
S. 357,
434 U. S. 363.
In a series of cases beginning with
North Carolina v.
Pearce and culminating in
Bordenkircher v. Hayes, the
Court has recognized this basic -- and itself uncontroversial --
principle. For while an individual certainly may be penalized for
violating the law, he just as certainly may not be punished for
exercising a protected statutory or constitutional right. [
Footnote 4]
The imposition of punishment is the very purpose of virtually
all criminal proceedings. The presence of a punitive
Page 457 U. S. 373
motivation, therefore, does not provide an adequate basis for
distinguishing governmental action that is fully justified as a
legitimate response to perceived criminal conduct from governmental
action that is an impermissible response to noncriminal, protected
activity. Motives are complex and difficult to prove. As a result,
in certain cases in which action detrimental to the defendant has
been taken after the exercise of a legal right, the Court has found
it necessary to "presume" an improper vindictive motive. Given the
severity of such a presumption, however -- which may operate in the
absence of any proof of an improper motive and thus may block a
legitimate response to criminal conduct -- the Court has done so
only in cases in which a reasonable likelihood of vindictiveness
exists.
In
North Carolina v. Pearce, the Court held that
neither the Double Jeopardy Clause nor the Equal Protection Clause
prohibits a trial judge from imposing a harsher sentence on retrial
after a criminal defendant successfully attacks an initial
conviction on appeal. The Court stated, however, that
"[i]t can hardly be doubted that it would be a flagrant
violation [of the Due Process Clause] of the Fourteenth Amendment
for a state trial court to follow an announced practice of imposing
a heavier sentence upon every reconvicted defendant for the
explicit purpose of punishing the defendant for his having
succeeded in getting his original conviction set aside."
395 U.S. at
395 U. S.
723-724. The Court continued:
"Due process of law, then, requires that vindictiveness against
a defendant for having successfully attacked his first conviction
must play no part in the sentence he receives after a new trial.
And since the fear of such vindictiveness may unconstitutionally
deter a defendant's exercise of the right to appeal or collaterally
attack his first conviction, due process also requires that a
defendant be freed of apprehension of such a retaliatory
Page 457 U. S. 374
motivation on the part of the sentencing judge."
Id. at
395 U. S. 725.
In order to assure the absence of such a motivation, the Court
concluded:
"[W]henever a judge imposes a more severe sentence upon a
defendant after a new trial, the reasons for his doing so must
affirmatively appear. Those reasons must be based upon objective
information concerning identifiable conduct on the part of the
defendant occurring after the time of the original sentencing
proceeding. And the factual data upon which the increased sentence
is based must be made part of the record, so that the
constitutional legitimacy of the increased sentence may be fully
reviewed on appeal."
Id. at
395 U. S. 726.
In sum, the Court applied a presumption of vindictiveness, which
may be overcome only by objective information in the record
justifying the increased sentence. [
Footnote 5]
Page 457 U. S. 375
In
Blackledge v. Perry, 417 U. S.
21, the Court confronted the problem of increased
punishment upon retrial after appeal in a setting different from
that considered in
Pearce. Perry was convicted of assault
in an inferior court having exclusive jurisdiction for the trial of
misdemeanors. The court imposed a 6-month sentence. Under North
Carolina law, Perry had an absolute right to a trial
de
novo in the Superior Court, which possessed felony
jurisdiction. After Perry filed his notice of appeal, the
prosecutor obtained a felony indictment charging him with assault
with a deadly weapon. Perry pleaded guilty to the felony and was
sentenced to a term of five to seven years in prison.
In reviewing Perry's felony conviction and increased sentence,
[
Footnote 6] this Court first
stated the essence of the holdings in
Pearce and the cases
that had followed it:
"The lesson that emerges from
Pearce, Colten, and
Chaffin is that the Due Process Clause is not offended by
all possibilities of increased punishment upon retrial after
appeal, but only by those that pose a realistic likelihood of
'vindictiveness.'"
417 U.S. at
417 U. S. 27.
The Court held that the opportunities for vindictiveness in the
situation before it were such "as to impel the conclusion that due
process of law requires a rule analogous to that of the
Pearce case."
Ibid. It explained:
Page 457 U. S. 376
"A prosecutor clearly has a considerable stake in discouraging
convicted misdemeanants from appealing, and thus obtaining a trial
de novo in the Superior Court, since such an appeal will
clearly require increased expenditures of prosecutorial resources
before the defendant's conviction becomes final, and may even
result in a formerly convicted defendant's going free. And, if the
prosecutor has the means readily at hand to discourage such appeals
-- by 'upping the ante' through a felony indictment whenever a
convicted misdemeanant pursues his statutory appellate remedy --
the State can insure that only the most hardy defendants will brave
the hazards of a
de novo trial."
Id. at
417 U. S. 27-28.
The Court emphasized in
Blackledge that it did not matter
that no evidence was present that the prosecutor had acted in bad
faith or with malice in seeking the felony indictment. [
Footnote 7] As in
Pearce, the
Court held that the likelihood of vindictiveness justified a
presumption that would free defendants of apprehension of such a
retaliatory motivation on the part of the prosecutor. [
Footnote 8]
Both
Pearce and
Blackledge involved the
defendant's exercise of a procedural right that caused a complete
retrial after he had been once tried and convicted. The decisions
in these cases reflect a recognition by the Court of the
institutional bias inherent in the judicial system against the
retrial of issues that have already been decided. The doctrines of
stare decisis, res judicata, the law of the case, and
double jeopardy all are based, at least in part, on that
deep-seated bias.
Page 457 U. S. 377
While none of these doctrines barred the retrials in
Pearce and
Blackledge, the same institutional
pressure that supports them might also subconsciously motivate a
vindictive prosecutorial or judicial response to a defendant's
exercise of his right to obtain a retrial of a decided
question.
In
Bordenkircher v. Hayes, 434 U.
S. 357, the Court for the first time considered an
allegation of vindictiveness that arose in a pretrial setting. In
that case, the Court held that the Due Process Clause of the
Fourteenth Amendment did not prohibit a prosecutor from carrying
out a threat, made during plea negotiations, to bring additional
charges against an accused who refused to plead guilty to the
offense with which he was originally charged. The prosecutor in
that case had explicitly told the defendant that, if he did not
plead guilty and "save the court the inconvenience and necessity of
a trial," he would return to the grand jury to obtain an additional
charge that would significantly increase the defendant's potential
punishment. [
Footnote 9] The
defendant refused to plead guilty, and the prosecutor obtained the
indictment. It was not disputed that the additional charge was
justified by the evidence, that the prosecutor was in possession of
this evidence at the time the original indictment was obtained, and
that the prosecutor sought the additional charge because of the
accused's refusal to plead guilty to the original charge.
In finding no due process violation, the Court in
Bordenkircher considered the decisions in
Pearce
and
Blackledge, and stated:
"In those cases, the Court was dealing with the State's
unilateral imposition of a penalty upon a defendant who had chosen
to exercise a legal right to attack his original conviction -- a
situation 'very different from the give-and-take
Page 457 U. S. 378
negotiation common in plea bargaining between the prosecution
and defense, which arguably possess relatively equal bargaining
power.'
Parker v. North Carolina, 397 U. S.
790,
397 U. S. 809 (opinion of
BRENNAN, J.)."
434 U.S. at
434 U. S. 362.
The Court stated that the due process violation in
Pearce
and
Blackledge
"lay not in the possibility that a defendant might be deterred
from the exercise of a legal right . . . , but rather in the danger
that the State might be retaliating against the accused for
lawfully attacking his conviction."
434 U.S. at
434 U. S.
363.
The Court held, however, that there was no such element of
punishment in the "give-and-take" of plea negotiation, so long as
the accused "is free to accept or reject the prosecution's offer."
Ibid. The Court noted that, by tolerating and encouraging
the negotiation of pleas, this Court 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 constitutional right to stand trial. The
Court concluded:
"We hold only that the course of conduct engaged in by the
prosecutor in this case, which no more than openly presented the
defendant with the unpleasant alternatives of forgoing trial or
facing charges on which he was plainly subject to prosecution, did
not violate the Due Process Clause of the Fourteenth
Amendment."
Id. at
434 U. S.
365.
The outcome in
Bordenkircher was mandated by this
Court's acceptance of plea negotiation as a legitimate process.
[
Footnote 10] In declining
to apply a presumption of vindictiveness,
Page 457 U. S. 379
the Court recognized that "additional" charges obtained by a
prosecutor could not necessarily be characterized as an
impermissible "penalty." Since charges brought in an original
indictment may be abandoned by the prosecutor in the course of plea
negotiation -- in often what is clearly a "benefit" to the
defendant -- changes in the charging decision that occur in the
Page 457 U. S. 380
context of plea negotiation are an inaccurate measure of
improper prosecutorial "vindictiveness." [
Footnote 11] An initial indictment -- from which the
prosecutor embarks on a course of plea negotiation -- does not
necessarily define the extent of the legitimate interest in
prosecution. For just as a prosecutor may forgo legitimate charges
already brought in an effort to save the time and expense of trial,
a prosecutor may file additional charges if an initial expectation
that a defendant would plead guilty to lesser charges proves
unfounded. [
Footnote 12]
III
This case, like
Bordenkircher, arises from a pretrial
decision to modify the charges against the defendant. Unlike
Bordenkircher, however, there is no evidence in this case
that could give rise to a claim of
actual vindictiveness;
the
Page 457 U. S. 381
prosecutor never suggested that the charge was brought to
influence the respondent's conduct. [
Footnote 13] The conviction in this case may be reversed
only if a
presumption of vindictiveness -- applicable in
all cases -- is warranted.
There is good reason to be cautious before adopting an
inflexible presumption of prosecutorial vindictiveness in a
pretrial setting. In the course of preparing a case for trial, the
prosecutor may uncover additional information that suggests a basis
for further prosecution, or he simply may come to realize that
information possessed by the State has a broader significance. At
this stage of the proceedings, the prosecutor's assessment of the
proper extent of prosecution may not have crystallized. In
contrast, once a trial begins -- and certainly by the time a
conviction has been obtained -- it is much more likely that the
State has discovered and assessed all of the information against an
accused and has made a determination, on the basis of that
information, of the extent to which he should be prosecuted. Thus,
a change in the charging decision made after an initial trial is
completed is much more likely to be improperly motivated than is a
pretrial decision.
In addition, a defendant before trial is expected to invoke
procedural rights that inevitably impose some "burden" on the
prosecutor. Defense counsel routinely file pretrial motions to
suppress evidence; to challenge the sufficiency and form of an
indictment; to plead an affirmative defense; to request psychiatric
services; to obtain access to government files; to be tried by
jury. It is unrealistic to assume that a prosecutor's probable
response to such motions is to seek to penalize and to deter. The
invocation of procedural rights is an integral part of the
adversary process in which our criminal justice system
operates.
Thus, the timing of the prosecutor's action in this case
suggests that a presumption of vindictiveness is not warranted.
Page 457 U. S. 382
A prosecutor should remain free before trial to exercise the
broad discretion entrusted to him to determine the extent of the
societal interest in prosecution. An initial decision should not
freeze future conduct. [
Footnote
14] As we made clear in
Bordenkircher, the initial
charges filed by a prosecutor may not reflect the extent to which
an individual is legitimately subject to prosecution. [
Footnote 15]
The nature of the right asserted by the respondent confirms that
a presumption of vindictiveness is not warranted in this case.
After initially expressing an interest in plea negotiation,
respondent decided not to plead guilty, and requested a trial by
jury in District Court. In doing so, he forced the Government to
bear the burdens and uncertainty of a trial. This Court in
Bordenkircher, made clear that the mere fact that a
defendant refuses to plead guilty and forces the government to
prove its case is insufficient to warrant a presumption that
subsequent changes in the charging decision
Page 457 U. S. 383
are unjustified. Respondent argues that such a presumption is
warranted in this case, however, because he not only requested a
trial -- he requested a trial by jury.
We cannot agree. The distinction between a bench trial and a
jury trial does not compel a special presumption of prosecutorial
vindictiveness whenever additional charges are brought after a jury
is demanded. To be sure, a jury trial is more burdensome than a
bench trial. The defendant may challenge the selection of the
venire; the jury itself must be impaneled; witnesses and arguments
must be prepared more carefully to avoid the danger of a mistrial.
These matters are much less significant, however, than the facts
that, before either a jury or a judge, the State must present its
full case against the accused and the defendant is entitled to
offer a full defense. As compared to the complete trial
de
novo at issue in
Blackledge, a jury trial -- as
opposed to a bench trial -- does not require duplicative
expenditures of prosecutorial resources before a final judgment may
be obtained. Moreover, unlike the trial judge in
Pearce,
no party is asked "to do over what it thought it had already done
correctly." [
Footnote 16] A
prosecutor has no "personal stake" in a bench trial, and thus no
reason to engage in "self-vindication" upon a defendant's request
for a jury trial. [
Footnote
17] Perhaps most importantly, the institutional bias against
the retrial of a decided question that supported the decisions in
Pearce and
Blackledge simply has no counterpart
in this case. [
Footnote
18]
Page 457 U. S. 384
There is an opportunity for vindictiveness, as there was in
Colten and
Chaffin. Those cases demonstrate,
however, that a mere opportunity for vindictiveness is insufficient
to justify the imposition of a prophylactic rule. As
Blackledge makes clear,
"the Due Process Clause is not offended by all possibilities of
increased punishment . . . but only by those that pose a realistic
likelihood of 'vindictiveness.'"
417 U.S. at
417 U. S. 27.
The possibility that a prosecutor would respond to a defendant's
pretrial demand for a jury trial by bringing charges not in the
public interest that could be explained only as a penalty imposed
on the defendant is so unlikely that a presumption of
vindictiveness certainly is not warranted.
IV
In declining to apply a presumption of vindictiveness, we of
course do not foreclose the possibility that a defendant, in an
appropriate case, might prove objectively that the prosecutor's
charging decision was motivated by a desire to punish him for doing
something that the law plainly allowed him to do. [
Footnote 19] In this case, however, the
Court of Appeals stated: "On this record, we readily conclude that
the prosecutor did not act with actual vindictiveness in seeking a
felony indictment." 637 F.2d at 252. Respondent does not challenge
that finding. Absent a presumption of vindictiveness, no due
process violation has been established.
The judgment of the Court of Appeals is reversed. The
Page 457 U. S. 385
case is remanded for further proceedings consistent with this
opinion.
It is so ordered.
[
Footnote 1]
At that time, there was no statutory provision allowing a trial
by jury before a magistrate.
[
Footnote 2]
By affidavit, the Assistant United States Attorney later set
forth his reasons for this action: (1) he considered respondent's
conduct on the date in question to be a serious violation of law,
(2) respondent had a lengthy history of violent crime, (3) the
prosecutor considered respondent's conduct to be related to major
narcotics transactions, (4) the prosecutor believed that respondent
had committed perjury at his preliminary hearing, and (5)
respondent had failed to appear for trial as originally scheduled.
The Government attorney stated that his decision to seek a felony
indictment was not motivated in any way by Goodwin's request for a
jury trial in District Court.
[
Footnote 3]
App. to Pet. for Cert. 22a;
cf. n 2,
supra. The District Court considered the
merits of respondent's motion even though it was not timely filed
in accordance with Rule 12(b)(1) of the Federal Rules of Criminal
Procedure. The District Court found sufficient "cause" for
respondent's procedural default pursuant to Federal Rule of
Criminal Procedure 12(f). The Court of Appeals did not consider the
propriety of the District Court's ruling in this regard, and
neither do we.
[
Footnote 4]
"[F]or an agent of the State to pursue a course of action whose
objective is to penalize a person's reliance on his legal rights is
'patently unconstitutional.'"
Bordenkircher v. Hayes, 434 U.
S. 357,
434 U. S. 363
(quoting
Chaffin v. Stynchcombe, 412 U. S.
17,
412 U. S. 323,
n. 20).
[
Footnote 5]
Two subsequent cases developed the principles set forth in
Pearce. In
Colten v. Kentucky, 407 U.
S. 104, the Court refused to apply the prophylactic rule
of
Pearce to an allegation of vindictiveness that arose in
a case involving Kentucky's two-tier system for adjudicating less
serious criminal charges. In that system, a defendant who is
convicted and sentenced in an inferior court is entitled to a trial
de novo in a court of general jurisdiction. The defendant
in
Colten exercised that right and received a more severe
sentence from the court of general jurisdiction. This Court found
that "[t]he possibility of vindictiveness, found to exist in
Pearce, is not inherent in the Kentucky two-tier system."
407 U.S. at
407 U. S. 116.
The Court emphasized that the second trial was conducted, and the
final sentence was imposed, by a different court that was not asked
"to do over what it thought it had already done correctly."
Id. at
407 U. S. 117.
The Court noted:
"It may often be that the superior court will impose a
punishment more severe than that received from an inferior court.
But it no more follows that such a sentence is a vindictive penalty
for seeking a superior court trial than that the inferior court
imposed a lenient penalty."
Ibid. Ultimately, the Court described the sentence
received from the inferior tribunal as, "in effect . . . , no more
than an offer in settlement."
Id. at
407 U. S.
119.
In
Chaffin v. Stynchcombe, 412 U. S.
17, the Court held that the prophylactic rule of
Pearce does not apply when the second sentence is imposed
on retrial by a jury. The Court emphasized that the decision in
Pearce "was premised on the apparent need to guard against
vindictiveness in the resentencing process." 412 U.S. at
412 U. S. 25
(emphasis in original). The Court found that the possibility of
vindictiveness was
de minimis when resentencing was by
jury in a properly controlled retrial. The Court noted that (1) the
jury typically will not be aware of the prior sentence, (2) the
jury, unlike a judge who has been reversed, will have no personal
stake in the prior conviction and no motivation to engage in
self-vindication, and (3) the jury will not likely be sensitive to
the institutional interests that might occasion higher sentences by
a judge desirous of discouraging what he regards as meritless
appeals.
Id. at
412 U. S.
26-27.
[
Footnote 6]
The Court held that, in pleading guilty, Perry had not waived
the right "not to be haled into court at all upon the felony
charge." 417 U.S. at
417 U. S.
30.
[
Footnote 7]
"There is, of course, no evidence that the prosecutor in this
case acted in bad faith or maliciously in seeking a felony
indictment against Perry."
Id. at
417 U. S.
28.
[
Footnote 8]
The presumption again could be overcome by objective evidence
justifying the prosecutor's action. The Court noted:
"This would clearly be a different case if the State had shown
that it was impossible to proceed on the more serious charge at the
outset, as in
Diaz v. United States, 223 U. S.
442."
Id. at
417 U. S. 29, n.
7.
[
Footnote 9]
The prosecutor advised the defendant that he would obtain an
indictment under the Kentucky Habitual Criminal Act, which would
subject the accused to a mandatory sentence of life imprisonment by
reason of his two prior felony convictions. Absent the additional
indictment, the defendant was subject to a punishment of 2 to 10
years in prison.
[
Footnote 10]
Cf. 434 U.S. at
434 U. S.
364-365 ("To hold that the prosecutor's desire to induce
a guilty plea . . . may play no part in his charging decision would
contradict the very premises that underlie the concept of plea
bargaining itself"). If a prosecutor could not threaten to bring
additional charges during plea negotiation, and then obtain those
charges when plea negotiation failed, an equally compelling
argument could be made that a prosecutor's initial charging
decision could never be influenced by what he hoped to gain in the
course of plea negotiation. Whether "additional" charges were
brought originally and dismissed, or merely threatened during plea
negotiations, the prosecutor could be accused of using those
charges to induce a defendant to forgo his right to stand trial. If
such use of "additional" charges were presumptively invalid, the
institution of plea negotiation could not survive. Thus, to
preserve the plea negotiation process, with its correspondent
advantages for both the defendant and the State, the Court in
Bordenkircher held that "additional" charges my be used to
induce a defendant to plead guilty. Once that conclusion was
accepted, it necessarily followed that it did not matter whether
the "additional" charges were obtained in the original indictment
or merely threatened in plea negotiations and obtained once those
negotiations broke down. In the former situation, the prosecutor
could be said simply to have "anticipated" that the defendant might
refuse to plead guilty and, as a result, to have placed his
"threat" in the original indictment.
Cf. id. at
434 U. S.
360-361 ("As a practical matter, in short, this case
would be no different if the grand jury had indicted Hayes as a
recidivist from the outset, and the prosecutor had offered to drop
that charge as part of the plea bargain").
The decision in
Bordenkircher also was influenced by
the fact that, had the Court recognized a distinction of
constitutional dimension between the dismissal of charges brought
in an original indictment and the addition of charges after plea
negotiation, the aggressive prosecutor would merely be prompted "to
bring the greater charge initially in every case, and only
thereafter to bargain."
Id. at
434 U. S. 368
(BLACKMUN, J., dissenting). The consequences of such a decision
often would be prejudicial to defendants, for an accused
"would bargain against a greater charge, face the likelihood of
increased bail, and run the risk that the court would be less
inclined to accept a bargained plea."
Ibid. Moreover, in those cases in which a defendant
accepted the prosecution's offer, his reputation would be spared
the unnecessary damage that would result from the placement of the
additional charge on the public record.
[
Footnote 11]
The Court in
Bordenkircher stated that the validity of
a pretrial charging decision must be measured against the broad
discretion held by the prosecutor to select the charges against an
accused.
"Within the limits set by the legislature's constitutionally
valid definition of chargeable offenses, 'the conscious exercise of
some selectivity in enforcement is not itself a federal
constitutional violation' so long as 'the selection was [not]
deliberately based upon an unjustifiable standard such as race,
religion, or other arbitrary classification.'"
Id. at
434 U. S. 364
(quoting
Oyler v. Boles, 368 U. S. 448,
368 U. S.
456). A charging decision does not levy an improper
"penalty" unless it results solely from the defendant's exercise of
a protected legal right, rather than the prosecutor's normal
assessment of the societal interest in prosecution.
See
Westen & Westin, A Constitutional Law of Remedies for Broken
Plea Bargains, 66 Calif.L.Rev. 471, 486 (1978).
[
Footnote 12]
In rejecting a presumption of vindictiveness, the Court in
Bordenkircher did not foreclose the possibility that a
defendant might prove through objective evidence an improper
prosecutorial motive. In the case before it, however, the Court did
not find such proof in the fact that the prosecutor had stated
explicitly that additional charges were brought to persuade the
defendant to plead guilty. The fact that the prosecutor threatened
the defendant did not prove that the action threatened was not
permissible; the prosecutor's conduct did not establish that the
additional charges were brought solely to "penalize" the defendant,
and could not be justified as a proper exercise of prosecutorial
discretion.
[
Footnote 13]
See n 12,
supra.
[
Footnote 14]
We recognize that prosecutors may be trained to bring all
legitimate charges against an individual at the outset. Certainly,
a prosecutor should not file any charge until he has investigated
fully all of the circumstances surrounding a case. To presume that
every case is complete at the time an initial charge is filed,
however, is to presume that every prosecutor is infallible -- an
assumption that would ignore the practical restraints imposed by
often limited prosecutorial resources. Moreover, there are certain
advantages in avoiding a rule that would compel prosecutors to
attempt to place every conceivable charge against an individual on
the public record from the outset.
See n 10,
supra.
[
Footnote 15]
Respondent argues that the Court's refusal to presume
vindictiveness in
Bordenkircher is not controlling in this
case because he had refused to plead guilty, and the plea
negotiation process was over. Respondent's argument is not
strengthened, however, by the fact that the additional charge in
this case was brought outside the context of plea negotiation. The
fact that the increased charge in
Bordenkircher was
brought after a "warning" made during plea negotiation was the
principal basis for the defendant's claim that the charge was an
unjustified response to his legal right to stand trial.
But
cf. n 12,
supra. Respondent's argument in this case has no such
predicate; unlike the defendant in
Bordenkircher, the only
evidence respondent is able to marshal in support of his allegation
of vindictiveness is that the additional charge was brought at a
point in time after his exercise of a protected legal right.
[
Footnote 16]
Cf. Colten v. Kentucky, 407 U.S. at
407 U. S.
117.
[
Footnote 17]
Cf. Chaffin v. Stynchcombe, 412 U.S. at
412 U. S.
27.
[
Footnote 18]
Indeed, there is a strong tradition in this country in favor of
jury trials, despite the additional burdens that they entail for
all parties. In many cases -- and for many reasons -- both the
judge and the prosecutor may prefer to have a case tried by jury.
See, e.g., Vines v. Muncy, 553 F.2d 342 (CA4 1977);
United States v. Morlang, 531 F.2d 183 (CA4 1975);
United States v. Ceja, 451 F.2d 399 (CA1 1971);
see
also Fed.Rule Crim.Proc. 23(a). In
Singer v. United
States, 380 U. S. 24, this
Court held that a criminal defendant does not have a constitutional
right to waive a jury trial and to have his case tried before a
judge alone. The Court stated:
"Trial by jury has been established by the Constitution as the
'normal and . . . preferable mode of disposing of issues of fact in
criminal cases.'
Patton v. United States, 281 U. S.
276,
281 U. S. 312."
Id. at
380 U. S.
35.
[
Footnote 19]
As the Government states in its brief:
"Accordingly, while the prosecutor's charging decision is
presumptively lawful, and the prosecutor is not required to sustain
any burden of justification for an increase in charges, the
defendant is free to tender evidence to the court to support a
claim that enhanced charges are a direct and unjustifiable penalty
for the exercise of a procedural right. Of course, only in a rare
case would a defendant be able to overcome the presumptive validity
of the prosecutor's actions through such a demonstration."
Brief for United States 28, n. 9.
JUSTICE BLACKMUN, concurring in the judgment.
Like JUSTICE BRENNAN, I believe that our precedents mandate the
conclusion that "a realistic likelihood of
vindictiveness'"
arises in this context. Blackledge v. Perry, 417 U. S.
21, 417 U. S. 27
(1974). The Assistant United States Attorney responsible for
increasing the charges against respondent was aware of the initial
charging decision; he had the means available to discourage
respondent from electing a jury trial in District Court; he had a
substantial stake in dissuading respondent from exercising that
option; and he was familiar with, and sensitive to, the
institutional interests that favored a trial before the
Magistrate.
Moreover, I find no support in our prior cases for any
distinction between pretrial and post-trial vindictiveness. As I
have said before:
"Prosecutorial vindictiveness in any context is still
prosecutorial vindictiveness. The Due Process Clause should protect
an accused against it, however it asserts itself."
Bordenkircher v. Hayes, 434 U.
S. 357,
434 U. S. 368
(1978) (dissenting opinion). And, as JUSTICE BRENNAN points out,
Bordenkircher does not dictate the result here. In fact,
in
Bordenkircher, the Court expressly distinguished and
left unresolved cases such as this one,
"where the prosecutor, without notice, brought an additional and
more serious charge after plea negotiations relating only to the
original [charges] had ended with the defendant's insistence on
pleading not guilty."
Id. at
434 U. S.
360.
The Court's ruling in
Bordenkircher did not depend on a
distinction between the pretrial and post-trial settings: rather,
the Court declined to apply its prior opinions in
Blackledge and
North Carolina v. Pearce,
395 U. S. 711
(1969), because those cases involved "the State's unilateral
imposition of a penalty," rather than "
the give-and-take
negotiation common in plea bargaining.'" 434 U.S. at
Page 457 U. S.
386
362, quoting Parker v. North Carolina, 397 U.
S. 790, 397 U. S. 809
(1970) (opinion of BRENNAN, J.). Here, as in Pearce and
Blackledge, the prosecutor unilaterally imposed a penalty
in response to respondent's exercise of a legal right.
Adopting the prophylactic rule of
Pearce and
Blackledge in this case will not, as the Court would
insist, undercut "the broad discretion entrusted to [the
prosecutor] to determine the extent of the societal interest in
prosecution."
Ante at
457 U. S.
382.
"[T]he prosecutor initially 'makes a discretionary determination
that the interests of the state are served by not seeking more
serious charges.'"
Bordenkircher v. Hayes, 434 U.S. at
434 U. S. 367
(dissenting opinion), quoting
Hayes v. Cowan, 547 F.2d 42,
44 (CA6 1976). Moreover, the Due Process Clause does not deprive a
prosecutor of the flexibility to add charges after a defendant has
decided not to plead guilty and has elected a jury trial in
District Court -- so long as the adjustment is based on "objective
information concerning identifiable conduct on the part of the
defendant occurring after the time of the original" charging
decision.
North Carolina v. Pearce, 395 U.S. at
395 U. S. 726.
In addition, I believe that the prosecutor adequately explains an
increased charge by pointing to objective information that he could
not reasonably have been aware of at the time charges were
initially filed.
Cf. ante at
457 U. S.
381.
Because I find that the Assistant United States Attorney's
explanation for seeking a felony indictment satisfies these
standards,
see ante at
457 U. S. 371,
n. 2, I conclude that the Government has dispelled the appearance
of vindictiveness and, therefore, that the imposition of additional
charges did not violate respondent's due process rights.
Accordingly, I concur in the judgment.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.
In
Blackledge v. Perry, 417 U. S.
21 (1974), this Court held that the Due Process Clause
prohibits a prosecutor from responding
Page 457 U. S. 387
to the defendant's invocation of his statutory right to a trial
de novo by bringing more serious charges against him that
arise out of the same conduct. In the case before us, the
prosecutor responded to the defendant's invocation of his statutory
and constitutional right to a trial
by jury by
raising petty offenses to felony charges based on the same conduct.
Yet the Court holds, in the teeth of
Blackledge, that here
there is no denial of due process. In my view,
Blackledge
requires affirmance of the Court of Appeals, and the Court's
attempt to distinguish that case from the present one is completely
unpersuasive.
The salient facts of this case are quite simple. Respondent was
originally charged with several petty offenses and misdemeanors --
speeding, reckless driving, failing to give aid at the scene of an
accident, fleeing from a police officer, and assault by striking a
police officer -- arising from his conduct on the
Baltimore-Washington Parkway. Assuming that respondent had been
convicted on every count charged in this original complaint, the
maximum punishment to which he conceivably could have been exposed
was fines of $3,500 and 28 months in prison. [
Footnote 2/1] Because all of the charges against
respondent were petty offenses or misdemeanors, they were scheduled
for trial before a magistrate,
see 28 U.S.C. § 636(a)(3);
18 U.S.C. § 3401(a), who was not authorized to
Page 457 U. S. 388
conduct jury trials,
see ante at
457 U. S. 371,
n. 1. In addition, the case was assigned to a prosecutor who, owing
to inexperience, was not even authorized to try felony cases. Thus
the Government recognized that respondent's alleged crimes were
relatively minor, and attempted to dispose of them in an expedited
manner. But respondent frustrated this attempt at summary justice
by demanding a jury trial in Federal District Court. This was his
right, of course, not only under the applicable statute, 18 U.S.C.
§ 3401(b), but also under the Constitution. [
Footnote 2/2]
Respondent's demand required that the case be transferred from
the Magistrate's Court in Hyattsville to the District Court in
Baltimore, and that the prosecution be reassigned to an Assistant
United States Attorney, who was authorized to prosecute cases in
the District Court. The new prosecutor sought and obtained a
second, four-count indictment, in which the same conduct originally
charged as petty offense and misdemeanor counts was now charged as
a misdemeanor and two felonies: assaulting, resisting, or impeding
a federal officer with a deadly weapon, and assault with a
dangerous weapon. If we assume (as before) that respondent was
convicted on all of these charges, his maximum exposure to
punishment had now become fines of $11,500 and 15 years in prison.
[
Footnote 2/3] Respondent's claim
below was that such
Page 457 U. S. 389
an elevation of the charges against him from petty offenses to
felonies, following his exercise of his statutory and
constitutional right to a jury trial, reflected prosecutorial
vindictiveness that denied him due process of law.
The Court attempts to denigrate respondent's claim by asserting
that this case "involves presumptions,"
ante at
457 U. S. 369,
and by arguing that "there is no evidence in this case that could
give rise to a claim of
actual vindictiveness,"
ante at
457 U. S. 380
(emphasis in original). By casting respondent's claim in terms of a
"mere" legal presumption, the Court hopes to make that claim appear
to be unreal or technical. But such an approach is contrary to the
letter and spirit of
Blackledge. There we focused upon the
accused's "apprehension of . . . retaliatory motivation," 417 U.S.
at
417 U. S. 28,
and we held that the Due Process Clause is violated when situations
involving increased punishment "pose a realistic likelihood of
vindictiveness,'" id. at 417 U. S. 27. In
such situations, the criminal defendant's apprehension of
retaliatory motivation does not amount to an unreal or technical
violation of his constitutional rights. On the contrary, as we
recognized in North Carolina v. Pearce, 395 U.
S. 711, 395 U. S. 725
(1969), "the fear of such vindictiveness may unconstitutionally
deter a defendant's exercise" of his rights.
The Court does not contend that
Blackledge is
inapplicable to instances of pretrial as well as post-trial
vindictiveness. But after examining the record before us for
objective indications of such vindictiveness, the Court concludes,
ante at
457 U. S. 382,
that "a presumption of vindictiveness is not warranted in this
case." With all respect, I disagree both with the Court's
conclusion and with its reasoning. In my view, the question here is
not one of "presumptions." Rather, I would analyze respondent's
claim in the terms employed by our precedents. Did the elevation of
the charges against respondent "pose a realistic likelihood of
vindictiveness?'" See Blackledge v. Perry, 417 U.S. at
417 U. S. 27. Is
it possible that "the fear of such vindictiveness may
unconstitutionally deter" a person in respondent's position from
exercising his statutory and
Page 457 U. S. 390
constitutional right to a jury trial?
See North Carolina v.
Pearce, supra, at
395 U. S. 725.
The answer to these questions is plainly "Yes."
The Court suggests,
ante at
457 U. S. 383,
that the distinction between a bench trial and a jury trial is
unimportant in this context. Such a suggestion is demonstrably
fallacious. Experienced criminal practitioners, for both
prosecution and defense, know that a jury trial entails far more
prosecutorial work than a bench trial. Defense challenges to the
potential juror array,
voir dire examination of potential
jurors, and suppression hearings all take up a prosecutor's time
before a jury trial, adding to his scheduling difficulties and
caseload. More care in the preparation of his requested
instructions, of his witnesses, and of his own remarks is necessary
in order to avoid mistrial or reversible error. And there is always
the specter of the "irrational" acquittal by a jury that is
unreviewable on appeal. Thus it is simply inconceivable that a
criminal defendant's election to be tried by jury would be a matter
of indifference to his prosecutor. On the contrary, the prosecutor
would almost always prefer that the defendant waive such a
"troublesome" right. And if the defendant refuses to do so, the
prosecutor's subsequent elevation of the charges against the
defendant manifestly poses a realistic likelihood of
vindictiveness.
The truth of my conclusion, and the patent fallacy of the
Court's, is particularly evident on the record before us. The
practical effect of respondent's demand for a jury trial was that
the Government had to transfer the case from a trial before a
Magistrate in Hyattsville to a trial before a District Judge and
jury in Baltimore, and had to substitute one prosecutor for
another. The Government thus suffered not only administrative
inconvenience; it also lost the value of the preparation and
services of the first prosecutor, and was forced to commit a second
prosecutor to prepare the case from scratch. Thus, just as in
Blackledge, respondent's election
Page 457 U. S. 391
had the effect of "clearly requir[ing] increased expenditures of
prosecutorial resources before the defendant's conviction" could
finally be achieved. 417 U.S. at
417 U. S. 27.
And, to paraphrase
Blackledge,
"if the prosecutor has the means readily at hand to discourage
such [elections] by 'upping the ante' through a felony indictment .
. . -- the State can insure that only the most hardy defendants
will brave the hazards of a [jury] trial."
Cf. id. at
417 U. S. 27-28.
I conclude that the facts of this case easily support the inference
of "a realistic likelihood of vindictiveness."
The Court discusses
Bordenkircher v. Hayes,
434 U. S. 357
(1978),
ante at
457 U. S.
377-380, and suggests some analogy between that case and
the present one,
ante at
457 U. S. 380.
In my view, such an analogy is quite inapt.
Bordenkircher
dealt only with the context of plea bargaining and with the narrow
situation in which the prosecutor "openly presented the defendant
with the unpleasant alternatives of forgoing trial or facing
[increased] charges." 434 U.S. at
434 U. S. 365.
Bordenkircher did not remotely suggest that a pretrial
increase in charges, made as a response to a demand for jury trial,
would not present a realistic likelihood of vindictiveness when the
demand put the prosecution to an added burden such as that imposed
in this case. Indeed,
Bordenkircher expressly
distinguished its facts from those in
Blackledge and
Pearce:
"In those cases the Court was dealing with the State's
unilateral imposition of a penalty upon a defendant who had chosen
to exercise a legal right . . . -- a situation 'very different from
the give-and-take negotiation common in plea bargaining. . .
.'"
434 U.S. at
434 U. S. 362,
quoting
Parker v. North Carolina, 397 U.
S. 790,
397 U. S. 809
(1970). The facts in this case plainly fit within the pattern of
Pearce and
Blackledge, not of
Bordenkircher. There was no ongoing "give-and-take
negotiation" between respondent and the Government, and there
Page 457 U. S. 392
was the "unilateral imposition of a penalty" in response to
respondent's choice "to exercise a legal right."
Because it seems clear to me that
Blackledge requires
it, I would affirm the judgment of the Court of Appeals.
[
Footnote 2/1]
Two counts of "speeding" and one count of "reckless driving," in
violation of 36 CFR §§ 50.31, 50.32 (1981), are each punishable by
fines of not more than $500, or imprisonment for not more than six
months, or both, 36 CFR § 50.5(a) (1981). One count of "failing to
give aid at the scene of an accident," in violation of 18 U.S.C. §§
7, 13, Md.Transp.Code Ann. §§ 20-102, 20-104 (1977), is punishable
by a fine of not more than $1,000, or imprisonment for not more
than four months, or both, §§ 27-101(c)(12), (14).One count of
"fleeing from a police officer," in violation of 18 U.S.C. §§ 7,
13, Md.Transp.Code Ann. § 21-904 (1977), is punishable by a fine of
not more than $500, § 27-101(b). One count of "assault by striking"
a police officer, in violation of 18 U.S.C. § 113(d), is punishable
by a fine of not more than $500, or imprisonment for not more than
six months, or both.
[
Footnote 2/2]
See District of Columbia v. Colts, 282 U. S.
63,
282 U. S. 73-74
(1930);
United States v. Hamdan, 552 F.2d 276, 278-280
(CA9 1977);
United States v. Sanchez-Meza, 547 F.2d 461,
464-465 (CA9 1976);
United States v. Potvin, 481 F.2d 380,
381-383 (CA10 1973).
[
Footnote 2/3]
"Assaulting, resisting, or impeding" a federal officer with a
deadly weapon, in violation of 18 U.S.C. § 111, is punishable by a
fine of not more than $10,000, or imprisonment for not more than 10
years, or both. "Assault with a dangerous weapon," in violation of
18 U.S.C. § 113(c), is punishable by a fine of not more than
$1,000, or imprisonment for not more than five years, or both. A
third count in the new indictment was "fleeing from a police
officer," in violation of 18 U.S.C. §§ 7, 13, Md.Transp.Code Ann. §
21-904 (1977), which is punishable by a fine of not more than $500,
§ 27-101(b). The fourth count of the indictment was "failure to
appear," in violation of 18 U.S.C. § 3150.